Filed 7/8/11
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CLOVER VALLEY FOUNDATION et al.,
C061808
Plaintiffs and Appellants,
v.
CITY OF ROCKLIN et al.,
Defendants and Respondents;
ROCKLIN 650 VENTURE et al.,
Real Parties in Interest and
Respondents.
TOWN OF LOOMIS,
Plaintiff and Appellant,
v.
CITY OF ROCKLIN et al.,
Defendants and Respondents;
ROCKLIN 650 VENTURE et al.,
Real Parties in Interest and
Respondents.
1
(Super. Ct. No.
34-2007-00002871-CUWM-GDS)
APPEAL from a judgment of the Superior Court of Sacramento
County, LLoyd G. Connelly, Judge. Affirmed.
Kenyon Yeates, Charity Kenyon, Bill Yeates, and Christina
Morkner Brown for Plaintiffs and Appellants Clover Valley
Foundation and Sierra Club.
Law Offices of Donald B. Mooney and Donald B. Mooney for
Plaintiff and Appellant Town of Loomis.
Russell A. Hildebrand; Jarvis, Fay, Doporto & Gibson and
Rick W. Jarvis for Real Parties in Interest and Respondents.
INTRODUCTION
This is a case where CEQA worked.1
The City of Rocklin (the
City) in 2007 approved a residential development project for an
undeveloped area of the City known as Clover Valley.
The
approval culminated more than 10 years of planning and
environmental review for the site‟s development.
zoning authorized nearly 1,000 homes for the site.
Since 1981,
The site‟s
owners applied to develop a project for that size in 1991, and
environmental review began in earnest in 1995.
As a result of
environmental concerns analyzed since then, the approved project
is roughly half the size it could have been.
space has increased by a factor of five.
The amount of open
The project owners
have already paid millions of dollars to the City to construct
needed infrastructure.
The approved project has been redesigned
1
CEQA is the acronym for the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.).
2
to protect numerous environmental resources on the site,
particularly prehistoric Native American artifacts.
Plaintiffs Clover Valley Foundation, the Sierra Club, and
the Town of Loomis, however, claim the City has still failed to
conduct legally sufficient environmental review.
They filed
separate petitions for writs of mandate challenging the City‟s
project approval, claiming the City failed to comply with CEQA
and the state Planning and Zoning Law (Gov. Code, § 65000 et
seq.).
The trial court denied their petitions, and plaintiffs now
appeal those judgments.
Plaintiffs argue the City abused its
discretion in violation of CEQA by certifying an environmental
impact report (EIR) they assert failed on many fronts.
allegedly failed to:
It
describe the sites‟ cultural resources,
consider a sewer pipeline‟s growth-inducing effects, consider
all oak trees that will be removed, protect a listed species,
analyze view and traffic impacts, and document an adequate water
supply.
Plaintiffs also claim the project, by including road
construction within a 50-foot buffer zone, is not consistent
with the City‟s general plan.
We disagree with each of plaintiffs‟ claims and affirm the
trial court‟s judgments.
The EIR complies with all of CEQA‟s
procedural demands, and its factual conclusions are supported by
substantial evidence.
All of the impacts raised by plaintiffs
were sufficiently described and adequately mitigated in the EIR.
In addition, the City did not abuse its discretion in concluding
the project was consistent with the City‟s general plan.
3
FACTS
The project at issue, commonly called the Clover Valley
Project, is a residential subdivision proposed for the northern
end of Clover Valley, a small, narrow valley located in the
City‟s northeast corner.
Presently, this part of Clover Valley
is undeveloped.
Clover Valley Creek runs through the site from
north to south.
The area includes grasslands, wooded hillsides,
oak woodlands, historic rock walls, and prehistoric cultural and
archaeological resources.
As approved by the City, the 622-acre project will create
558 homes, a 5.3-acre neighborhood park, a 5.0-acre commercial
site, a 1.0-acre site for a future fire station, and related
infrastructure and streets.
One of those streets would be a new
road named the Valley View Parkway, a road that had earlier been
specified in the City‟s general plan.
The project would
preserve 366 acres of open space.
Planning for developing Clover Valley began years ago.
Since at least 1981, the site has been zoned for residential
development of as many as 974 homes.
In 1991, the owners of the
site applied to develop 974 homes with only 69.8 acres of open
space, and to annex the site into the City.
circulated a draft EIR for this project.
In 1995, the City
The City prepared a
final EIR in 1996, and certified it in 1997.
This EIR was not
challenged.
Based upon this EIR, the site was annexed to the City, and
the City approved general plan and zoning amendments along with
a development agreement to allow the proposed project to
4
proceed.
The development agreement, approved in late 1997 and
effective January 9, 1998, required the owners to pay $1.5
million to the City for a public recreation facility, which the
owners did.
The development agreement‟s initial term was 10
years, but the term would automatically be extended for the
period of time any litigation challenging any later project
approval was pending.
In 2000, the current owners, real parties in interest,
submitted an application to begin subdividing the project site
into 47 large lots, and the ultimate subdivision of those lots
into as many as 933 lots.
The City in 2002 circulated a draft
EIR for this proposal, which tiered from the earlier annexation
EIR certified in 1997.
During the review of this proposal, real parties in
interest repeatedly agreed to reduce the size of the project.
In October 2003, they reduced the number of homes to 753.
April 2004, they reduced the number to 710 homes.
2004, the reduced the number to 689 homes.
In
In August
They ultimately
reduced the number to the 558 ultimately approved by the City.
As part of this revision, real parties in interest agreed to
increase the amount of open space from 69.9 acres to 366 acres,
and to reduce Valley View Parkway from a four-lane road to two
lanes.
As part of the revised project, the City and real parties
in interest negotiated an amendment to the 1997 development
agreement.
This amendment extended the agreement‟s term by 10
years, limited the number of homes that could be built to 558,
5
required real parties in interest to pay the City $1 million
towards construction of a new fire station, and committed real
parties to transfer certain cultural sites on the land to the
United Auburn Indian Community for preservation.
The revised project necessitated general plan and zoning
amendments to account for the reduced acreage and number of
housing units, the increased acreage of open space, and the
other project revisions.
Rather than use the 2002 Draft EIR for
the revised and reduced project, City staff determined to
prepare a new draft EIR to analyze the revised project.
This
draft EIR, referred to as the Recirculated Draft EIR (RDEIR),
was publicly circulated during the first quarter of 2006.
The RDEIR generated 196 comment letters and 74 sets of oral
comments.
It took the city 15 months, until June 2007, to
prepare responses to all of the comments and to release the
Final EIR (FEIR).
The June 2007 FEIR included 49 pages of “Master Responses”
addressing the primary comments that had been raised.
The FEIR
also included revisions to the RDEIR text and a Mitigation
Monitoring Plan.
Members of the public submitted additional comments to the
FEIR.
As a result, although not required by CEQA, City staff
prepared “Responses to Additional Public Comments” (Additional
Responses), dated August 20, 2007.
The Additional Responses
stated they were intended to be incorporated into the FEIR and
were to be read together with the Master Responses.
6
Prior to the release of the Additional Responses, the
City‟s Planning Commission on July 30 and 31, 2007, held a
public hearing and unanimously recommended that the City Council
certify the EIR and approve the project.
On August 27 and 28, 2007, the City Council held a public
hearing on the project.
At the close of the hearing, the City
Council certified the EIR (which included the RDEIR, the FEIR
and its Master Responses, and the Additional Responses), adopted
CEQA findings, and unanimously approved the project, the
necessary general plan and zoning code amendments and
subdivision maps, and the negotiated amendment to the
development agreement.
Plaintiffs Clover Valley Foundation and the Sierra Club
(collectively the Foundation), and plaintiff Town of Loomis
(Loomis) filed separate petitions for writs of mandate
challenging the City‟s approval of the EIR and the project.
The
parties agreed to consolidate the two petitions and to change
venue to Sacramento County Superior Court.
On February 6, 2009, the trial court issued a ruling
denying the consolidated petitions.
On February 27, 2009, the
court entered judgment in favor of the City and the real parties
in interest.
The Foundation and Loomis appeal from the trial court‟s
judgment.
The Foundation alleges the City violated CEQA by failing
to:
7
1.
include in the EIR identifying and descriptive
information of cultural resources on the project site;
2.
consider a proposed sewer pipeline‟s growth-inducing
impacts;
3.
evaluate and mitigate for all of the oak trees that
will be removed for the project; and
4.
adopt legally enforceable mitigation measures to
protect the black rail, a bird species listed as threatened
under the California Endangered Species Act (Fish & G. Code, §
2050 et seq.).
The Foundation also claims the City violated the state
Planning and Zoning Law (Gov. Code, § 65000 et seq.) by
approving a development project that allegedly was inconsistent
with the City‟s general plan; specifically the general plan‟s
policy prohibiting development within 50 feet of stream banks.
Loomis alleges the City violated CEQA by failing to:
1.
adequately analyze the project‟s impacts on views from
Loomis or to discuss possible mitigation measures to avoid or
reduce those visual impacts;
2.
adequately analyze the project‟s impacts to
transportation and circulation; and
3.
identify a legally adequate long-term water supply for
the project.
We address each contention below, providing more detailed
factual information relevant to each argument.
8
DISCUSSION
I
CEQA Standard of Review
Before addressing the parties‟ arguments, we review the
standard of review we are to apply in a CEQA appeal.
Our
Supreme Court recently explained the standard of review as
follows:
“In reviewing an agency‟s compliance with CEQA in the
course of its legislative or quasi-legislative actions, the
courts‟ inquiry „shall extend only to whether there was a
prejudicial abuse of discretion.‟
21168.5.)
(Pub. Resources Code, §
Such an abuse is established „if the agency has not
proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.‟
(Pub.
Resources Code, § 21168.5; see Western States Petroleum Assn. v.
Superior Court [(1995)] 9 Cal.4th [559,] 568; Laurel Heights
Improvement Assn. v. Regents of University of California (1988)
47 Cal.3d 376, 392–393 (Laurel Heights I).)
“An appellate court‟s review of the administrative record
for legal error and substantial evidence in a CEQA case, as in
other mandamus cases, is the same as the trial court‟s:
The
appellate court reviews the agency‟s action, not the trial
court‟s decision; in that sense appellate judicial review under
CEQA is de novo.
[Citations.]
We therefore resolve the
substantive CEQA issues . . . by independently determining
whether the administrative record demonstrates any legal error
9
by the [City] and whether it contains substantial evidence to
support the [City‟s] factual determinations.”
(Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412, 426-427 (Vineyard Area Citizens), fns.
omitted.)
“[A]n agency may abuse its discretion under CEQA either by
failing to proceed in the manner CEQA provides or by reaching
factual conclusions unsupported by substantial evidence.
Resources Code,] § 21168.5.)
([Pub.
Judicial review of these two types
of error differs significantly:
While we determine de novo
whether the agency has employed the correct procedures,
„scrupulously enforc[ing] all legislatively mandated CEQA
requirements‟ (Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 564), we accord greater deference to the
agency‟s substantive factual conclusions.
In reviewing for
substantial evidence, the reviewing court „may not set aside an
agency‟s approval of an EIR on the ground that an opposite
conclusion would have been equally or more reasonable,‟ for, on
factual questions, our task „is not to weigh conflicting
evidence and determine who has the better argument.‟
(Laurel
Heights I, supra, 47 Cal.3d at p. 393.)
“In evaluating an EIR for CEQA compliance, then, a
reviewing court must adjust its scrutiny to the nature of the
alleged defect, depending on whether the claim is predominantly
one of improper procedure or a dispute over the facts.
For
example, where an agency failed to require an applicant to
provide certain information mandated by CEQA and to include that
10
information in its environmental analysis, we held the agency
„failed to proceed in the manner prescribed by CEQA.‟
(Sierra
Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; see
also Santiago County Water Dist. v. County of Orange [(1981)]
118 Cal.App.3d [818,] 829 [EIR legally inadequate because of
lack of water supply and facilities analysis].)
In contrast, in
a factual dispute over „whether adverse effects have been
mitigated or could be better mitigated‟ (Laurel Heights I,
supra, 47 Cal.3d at p. 393), the agency‟s conclusion would be
reviewed only for substantial evidence.
Thus, in Laurel Heights
I, we rejected as a matter of law the agency‟s contention that
the EIR did not need to evaluate the impacts of the project‟s
foreseeable future uses because there had not yet been a formal
decision on those uses (id. at pp. 393–399), but upheld as
supported by substantial evidence the agency‟s finding that the
project impacts described in the EIR were adequately mitigated
(id. at pp. 407–408).”
(Vineyard Area Citizens, supra, 40
Cal.4th at p. 435.)
We proceed to apply these standards to plaintiffs‟ CEQA
allegations.
II
The Foundation’s Appeal
A.
Description of cultural resources
The Foundation claims the EIR failed to properly describe
the cultural resources existing on the site and, in particular,
eight cultural sites that, despite project redesigns, are in
harm‟s way.
It asserts the EIR failed to provide an adequate
11
description of the existing cultural resources and failed to
identify any mitigation measures to remedy impacts to the
resources.
It also faults the City for not providing detailed
information about the sites to the State Historic Preservation
Officer upon the latter‟s request.
The Foundation acknowledges the City provided information
and proposed mitigation measures regarding the eight affected
cultural sites in the City‟s Additional Responses, but it claims
this information came too late.
CEQA, the Foundation argues,
required this information to be included in the publicly
circulated RDEIR, and the City allegedly abused its discretion
by failing to comply with this directive.
We disagree with the Foundation‟s argument.
The City‟s
description of the existing cultural resources in all of the
documents that comprise the EIR satisfied CEQA‟s requirement to
make a good faith effort at describing the existing conditions,
particularly in light of conflicting requirements that
prohibited the City from disclosing detailed information about
the location and type of cultural resources on the site.
CEQA, federal law, and other state laws uniformly require
the City to protect the confidentiality of Native American
cultural resources to preserve them from harm.
The Foundation‟s
argument, purportedly in the guise of protecting the
environment, actually would defeat the confidentiality and
expose the resources to a possible destruction.
CEQA on its head.
12
This would turn
1.
Additional background information
a.
RDEIR’s description and analysis of cultural
sites and proposed mitigation measures
The RDEIR begins its analysis of the project‟s impacts on
cultural resources by providing a 20-page overview of the
prehistoric and historic settlement of the Sierra Nevada and the
Central Valley, and the archeological and ethnographic studies
that have documented that settlement.
The discussion emphasizes
studies that were performed in areas near the project site.
Prehistoric Native American sites and artifacts have been found
and are well documented in areas around Rocklin, Newcastle, and
Auburn.
The discussion also relates the history of the area
since Americans of European descent arrived in the 1800s.
Regarding the project site, the RDEIR states record
searches and field surveys resulted in locating 34 prehistoric
period resources and one historic period resource within the
project site.
Test excavations at some of these sites
encountered Native American remains.
The RDEIR noted that in 2002, the United States Army Corps
of Engineers and the State Historic Preservation Officer (SHPO)
determined these resources formed an archaeological district
eligible for listing on the National Register of Historic Places
under the National Historic Preservation Act, 16 U.S.C. § 470 et
seq. (NHPA).
This determination was based on a study prepared
by Peak & Associates referred to as a DOE, an acronym for A
13
Determination of Eligibility and Effect on Cultural Resources
within the Clover Valley Lakes Project Area.
The RDEIR stated that because the Army Corps of Engineers
and the SHPO had determined the proposed project could adversely
affect the resources in this archaeological district, the Army
Corps of Engineers had initiated a process under section 106 of
the NHPA to develop a management plan known as a Historic
Properties Management Plan (HPMP) to mitigate the project‟s
adverse effects on the cultural resources.
(The HPMP was
submitted to the Army Corps of Engineers and the SHPO for review
and approval in July 2007.)
The RDEIR identifies the resources located in the project
site by a number on a chart, and for each resource it notes
whether the resource contains bedrock mortars, a midden,2
circular-shaped depressions, human remains, projectile points,
ground stone, lithic tools,3 and obsidian debitage.4
The RDEIR
does not provide any further identification or description of
the resources, such as their location, size, or significance.
It does not do so because that information is contained in the
2
A midden is a dunghill or refuse heap. (Mirriam-Webster‟s
Collegiate Dict. (11th ed. 2003) at p. 786.)
3
Lithic tools are tools made from stone.
Collegiate Dict., supra, p. 727.)
4
(Mirriam-Webster‟s
Debitage is waste material produced in making prehistoric
stone implements. (Oxford Dictionaries
<http://oxforddictionaries.com/definition/debitage> [as of July
8, 2011].)
14
proposed HPMP, and that document is confidential and not
available for public review in order to protect against
vandalism and artifact collecting.
The RDEIR concluded the project could result in a
potentially significant impact to these historic and cultural
resources.
The RDEIR explained:
“Although project site design
has been revised a number of times to avoid and protect
resources, not all of the resources can be avoided through
project design.
A program of mitigation has been designed to
satisfy the federal requirements for this undertaking in the
Historic Properties Management Plan (HPMP) that require[s]
approval by the U.S. Army Corps of Engineers and the State
Office of Historic Preservation.
Due to the sensitive nature of
information contained in the HPMP, the HPMP is not available for
public review.
Implementation measures for the cultural
resources sites include installation of temporary construction
fencing to avoid short-term impacts, as well as the use of
monitors during construction to ensure that sites are not
damaged or disturbed during construction.
However, for some
cultural sites, data recovery excavations may not occur prior to
the initiation of construction; therefore, the proposed project
would result in a potentially significant impact.”
(Original
boldface type and italics.)
To reduce this impact to a less than significant level, the
RDEIR proposed a number of mitigation measures.
Prior to
receiving a grading permit, real parties in interst must hire an
archaeologist who will assist in providing “cultural resource
15
sensitivity training” to all construction personnel.
Real
parties in interest must monitor all earth-moving activities,
and place construction fencing around cultural resource sites.
Despite project redesigns, eight resource sites could not
be protected.
The FDEIR required data recovery excavations to
occur at those sites, as detailed in the confidential HPMP.
Project construction was not to commence until the Army Corps of
Engineers accepted a preliminary report from the testing done at
those sites.
In addition, to protect against vandalism and artifact
collecting resulting from additional people living near the
resource sites, those sites identified in the HPMP to be
preserved are to be permanently fenced prior to the issuance of
a grading permit to minimize access.
Also, monitoring and
checking of the sites will occur throughout each year.
If during construction an archeological or historical
resource is discovered, all work will immediately stop within
100 feet of the find until Native American representatives and
archaeologists can determine whether the resource qualifies for
protection and mitigation measures can be recommended and
implemented.
If human remains are found, all work will be
halted until the coroner makes final disposition of the remains.
b.
Comments to RDEIR analysis and City’s response
After it circulated the RDEIR for public comment, the City
received numerous requests to disclose the location and
character of the cultural resources.
In the Master Responses
included in the Final EIR, the City explained its refusal to
16
provide additional identifying information.
It feared
disclosure would result in vandalism to the resources.
It also
claimed its refusal was consistent with the NHPA, which required
a federal agency not to disclose to the public information about
a historical resource‟s location and character if disclosure
would harm the resource.
The City in the RDEIR had disclosed
the archaeologically important elements of each cultural site
within the context of an extensive discussion of the
ethnographic context.5
That description, the City stated, was
adequate to meet the disclosure purposes of CEQA while
protecting the resources from harm.
Personnel with a need-to-
know had access to the DOE and the draft HPMP, which in the
federal permit process would be reviewed by the Army Corps of
Engineers and the SHPO.
The City claimed the federal process
was much more stringent than the CEQA process and would develop
the best possible preservation and mitigation measures for the
cultural sites.
One of the requests for additional information came from
the SHPO.
Following his review of the RDEIR, the SHPO wrote to
the City and requested copies of the DOE and the draft HPMP.
The City responded by giving the SHPO a copy of the DOE.
The
City noted that the SHPO had already received the DOE as part of
5
Ethnography is the study and systematic recording of human
cultures. (Mirriam-Webster‟s Collegiate Dict., supra, at p.
429.)
17
determining the cultural resources on the site qualified as an
archeological district under the NHPA.
The City, however, refused to give the SHPO a copy of the
draft HPMP as part of the CEQA review process for the reasons
already mentioned.
However, the SHPO would obtain a copy of the
HPMP as part of its requirement under the NHPA to consult with
the Army Corps of Engineers before the Corps grants permits for
the project.
This consultation would occur after the CEQA
process was completed.
The City included copies of this
correspondence in the FEIR.
c.
Comments to FEIR and City’s response in its
Additional Responses
Following its release of the FEIR, the City received
additional comments criticizing its refusal to disclose the
location and character of the cultural sites.
The SHPO
criticized the RDEIR and the FEIR for not providing an adequate
description of the archeological sites and their significance
because the DOE and the draft HPMP were not made available to
the public.
The SHPO claimed that “[w]hile sensitive
information such as archeological site records, sacred sites or
maps by law should not be made available, a redacted, but
complete version of the reports used in the preparation of a
[draft EIR] is required to either be circulated or made
available.”
The SHPO also claimed the RDEIR and the FEIR failed to
include any mitigation measures for the project‟s impacts to the
cultural resources.
He faulted the City for deferring to
18
mitigation measures that would eventually be developed under the
HPMP process as fulfilling the CEQA requirement to include
mitigation measures in the EIR.
The Foundation made similar complaints against the FEIR.
It also noted the City, in the original draft EIR prepared in
2002, had provided a narrative description of the cultural
sites.
It argued the City was required to do the same in the
RDEIR.
The City responded to these criticisms in its Additional
Responses.
The City recognized CEQA‟s demand to make a good
faith effort at full disclosure, but it was also bound to follow
legal requirements that prohibited full disclosure of
information concerning cultural resources.
CEQA prohibits the
disclosure of information about the location of archaeological
sites and sacred lands, or any other information subject to
disclosure restrictions under the state Public Records Act (Gov.
Code, § 6254).
(Guidelines, § 15120, subd. (d).)6
The Public
Records Act, in turn, does not require disclosure of any records
of Native American graves, cemeteries, places, features, and
objects in the possession of a local agency.
(Gov. Code, §
6254, subd. (r).)
Moreover, as already mentioned, the NHPA authorized federal
agencies not to disclose information regarding the location and
6
All references to “Guidelines” are to the state CEQA
Guidelines, which implement the provisions of CEQA. (Cal. Code
Regs., tit. 14, § 15000 et seq.).
19
character of a historic resource.
The City stated its refusal
to disclose more information than it did in the RDEIR was in
compliance with the federal law‟s intent.7
The City rejected the Foundation‟s criticism that it should
have provided a narrative description of the cultural resources
in the RDEIR instead of providing the information in a summary
table.
The City argues its use of the summary table was “merely
a different way to communicate nearly the same information.”
Despite its claim that it had complied with the demands of
CEQA regarding disclosure of cultural resources, the City
nonetheless provided as part of its Additional Responses more
information concerning the eight cultural resource sites the
project would impact.
The information, depicted in a table
called the Clover Valley Cultural Resources Description,
Treatment and Management Table, was derived from redacted site
descriptions contained in the DOE and the draft HPMP.
The City
provided the table “as a clarification or explanation and does
not represent any new environmental effects.”
This table provided more information than the summary table
used in the RDEIR.
The table named each of the eight affected
7
The City also stated that the United Auburn Indian
Community, with whom it was consulting to prepare the HPMP, had
“insisted that the City and the Developer take every precaution
to maintain the confidentiality of the location and contents of
the site. The City‟s caution is justified as evidenced by the
multitude of commentors that have related their discoveries of
biological and cultural resources after having trespassed on the
developer‟s private property.”
20
cultural sites by number, and for each site recited a brief site
description, the amount of the site that would be affected by
the project, the reason for the effect, and the management and
treatment actions planned to mitigate the effect.
For example, for the cultural site designated as no. CVL-7,
the table described the site as “Bedrock mortar features.
Associated deposit of cultural material.
Relatively deep (70
centimeter) deposit of cultural material in the central portion
and a much shallower and less dense deposit in the western
portion.
Three projectile points; two are large.
The third
point is a Rose Springs Contracting Stem point.”
The portion of the resource site area affected by the
project equaled 3,082.9 m2, or roughly 3/4 of an acre.
The
impact would arise from construction activities, permanent
infrastructure, and house pads.
To mitigate the impact, the
City would require permanent fencing around the site area not
directly affected by construction, bi-annual monitoring, and
data recovery excavations.
Similar descriptions were made for
each of the eight affected sites.
Regarding the claim that the City was wrongfully deferring
mitigation until the federal HPMP process was completed, the
City in its Additional Responses reminded the Foundation that
the RDEIR included a number of mitigation measures to reduce
impacts to a less than significant level independent of the HPMP
process.
The City claimed its mitigation regime satisfied the
demands of CEQA.
21
d.
Trial court’s ruling
At the hearing on the petitions, the trial court ordered
the parties to submit supplemental briefing on whether the EIR
adequately disclosed information about the cultural sites, the
timeliness of the disclosures made in the Additional Responses,
and the effect the NHPA section 106 process would have on the
project.
On the issue of adequacy, the court wondered why the
information about the sites contained in the Additional
Responses was not also made available for the other cultural
sites.
On the issue of timing, the court inquired whether
CEQA‟s policy of affording decision makers and the public an
opportunity to comment was fulfilled by including the additional
information in the Additional Responses prior to the City
Council‟s hearing on the project.
After reviewing the additional briefing, the trial court
determined the EIR‟s analysis of cultural resources, contained
in the RDEIR, the FEIR, the Master Responses, and the Additional
Responses, satisfied CEQA‟s requirements.
The trial court
determined the EIR sufficiently identified the characteristics
of the cultural resources, identified the adverse impacts the
project would cause to those resources, and specified feasible
mitigation measures to mitigate those impacts.
Regarding the level of disclosure made in the EIR, the
trial court ruled:
“In short, the EIR provides sufficiently
clear, comprehensible and comprehensive information to permit
decisionmakers and members of the public to intelligently assess
22
potential adverse project impacts to cultural resources and the
effectiveness of the specified mitigation measures in avoiding
or reducing the impacts to insignificance.
The omission of
details from the DOE and HPMP does not preclude accurate
assessment about the cultural significance of the contents of
the documented cultural resources, about the risk of damage and
destruction posed to the cultural significance of the resource
contents by project construction, and about the feasibility of
the specified mitigation measures to preserve documented and
accidentally discovered cultural resources in place while
recovering data from those portions of cultural resources that
will be damaged or destroyed by project construction.
[The
City‟s] withholding of details from the DOE and HPMP in
accordance with CEQA Guideline 15120(d) and NHPA regulations has
not impaired the EIR as an informational document enabling
informed public participation in the CEQA review process.”
(Fn.
omitted.)
Before us, the Foundation claims the trial court erred.
It
asserts the City prejudicially abused its discretion when it
refused to provide in the RDEIR redacted versions of the DOE and
HPMP to describe the cultural sites and proposed mitigation
measures for each.
Omitting this information, the Foundation
argues, subverted CEQA‟s public review purpose.
2.
Analysis
We must determine whether the EIR contains a sufficient
description of the historical and cultural resources existing on
the project site.
“An EIR must include a description of the
23
physical environmental conditions in the vicinity of the
project, as they exist at the time . . . environmental analysis
is commenced, from both a local and regional perspective.
This
environmental setting will normally constitute the baseline
physical conditions by which a lead agency determines whether an
impact is significant.
The description of the environmental
setting shall be no longer than is necessary to an understanding
of the significant effects of the proposed project and its
alternatives.”
(Guidelines, § 15125, subd. (a).)
“Guidelines section 15151 requires an EIR to be prepared
„with a sufficient degree of analysis to provide decisionmakers
with information which enables them to make a decision which
intelligently takes account of environmental consequences. . . .
[T]he sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible. . . .
The courts have looked not
for perfection but for adequacy, completeness, and a good faith
effort at full disclosure.‟
(See also San Francisco Ecology
Center v. City and County of San Francisco (1975) 48 Cal.App.3d
584, 594.)”
(County of Amador v. El Dorado County Water Agency
(1999) 76 Cal.App.4th 931, 954.)
“If the description of the environmental setting of the
project site and surrounding area is inaccurate, incomplete or
misleading, the EIR does not comply with CEQA.
(San Joaquin
Raptor[/Wildlife Rescue Center v. County of Stanislaus (1994)]
27 Cal.App.4th [713,] 729.)
„Without accurate and complete
information pertaining to the setting of the project and
surrounding uses, it cannot be found that the [EIR] adequately
24
investigated and discussed the environmental impacts of the
development project.‟
(Ibid.)”
(Cadiz Land Co. v. Rail Cycle
(2000) 83 Cal.App.4th 74, 87 (Cadiz Land Co.).)
This case presents a paradoxical twist on the issue of good
faith effort at full disclosure, as CEQA and the Public Records
Act actually restrict the amount of information regarding
cultural resources that can be disclosed in an EIR.
The
Guidelines prohibit an EIR from including “information about the
location of archaeological sites and sacred lands, or any other
information that is subject to the disclosure restrictions of
Section 6254 of the Government Code [part of the Public Records
Act].”
(Guidelines, § 15120, subd. (d).)
In turn, Government
Code section 6254 of the Public Records Act lists as exempt from
public disclosure any records “of Native American graves,
cemeteries, and sacred places and records of Native American
places, features, and objects described in Sections 5097.9 and
5097.993 of the Public Resources Code maintained by, or in the
possession of, the Native American Heritage Commission, another
state agency, or a local agency.”
(Gov. Code, § 6254, subd.
(r).)
Public Resources Code sections 5097.9 and 5097.993 list the
Native American places, features, and objects the records of
which are not to be publicly disclosed under the Public Records
Act:
“any Native American sanctified cemetery, place of
worship, religious or ceremonial site, or sacred shrine located
on public property,” (§ 5097.9) and any “Native American
historic, cultural, or sacred site, that is listed or may be
25
eligible for listing in the California Register of Historic
Resources . . .‟ including any historic or prehistoric ruins,
any burial ground, any archaeological or historic site, any
inscriptions made by Native Americans at such a site, any
archaeological or historic Native American rock art, or any
archaeological or historic feature of a Native American
historic, cultural, or sacred . . . site . . . .”
(§ 5097.993,
subd. (a)(1).)8,9
These Guidelines and statutes prohibited the City from
disclosing records and information concerning the project site‟s
archeological resources in the EIR, including the records
demanded by the SHPO.
The archaeological resources, comprising
as they do an archaeological district eligible for listing on
the National Register of Historic Places under the NHPA, are
Native American objects, the records of which in the City‟s
possession are not subject to disclosure under the Public
8
The Public Records Act also includes a separate statue,
Government Code section 6254.10, which prohibits disclosure of
archaeological records. That provision reads: “Nothing in [the
Public Records Act] requires disclosure of records that relate
to archaeological site information and reports maintained by, or
in the possession of . . . a local agency, including the records
that the agency obtains through a consultation process between a
California Native American tribe and a state or local agency.”
9
As a model, the City also relied upon the authority granted
to federal agencies under the NHPA to “withhold from disclosure
to the public, information about the location, character, or
ownership of a historic resource if the Secretary [of the
Interior] and the agency determine that disclosure may . . . [¶]
. . . [¶] risk harm to the historic resources . . . .” (16
U.S.C. § 470w-3(a).)
26
Records Act.
Thus, information about those objects contained in
those records, including the DOE and the draft HPMP, are to be
excluded under Guidelines section 15120 from publication in the
EIR.10
In an effort to make full disclosure of the existing
physical conditions while also trying to comply with the
prohibitions on disclosing information on archeological
resources, the City in the RDEIR provided a chart noting the
type of archaeological resource and recommended mitigation
measures to mitigate impacts to those resources.
In the
Additional Comments, the City provided more detailed information
of the resources that could not be protected and recommended
specific mitigation measures for each.
In this effort, the City
provided more information about the cultural sites than CEQA
required.
10
At oral argument, the Foundation for the first time argued
the lists of Native American objects contained in Public
Resources Code sections 5097.9 and 5097.993 do not apply to
limit disclosure of archeological resources under CEQA. The
Foundation bases this argument on the following sentence from
Public Resources Code section 5097.9: “The provisions of this
chapter shall not be construed to limit the requirements of the
Environmental Quality Act of 1970 [CEQA].” The Foundation
misapplies this sentence. Public Resources Code sections 5097.9
and 5097.993 are not being construed to limit CEQA‟s
requirements. Rather, CEQA, in the form of Guidelines section
15120, simply incorporates the objects listed in Public
Resources Code sections 5097.9 and 5097.993 into its list of
objects the information of which need not be disclosed in an
EIR. It is CEQA that is limiting CEQA, not the chapter in which
Public Resources Code sections 5097.9 and 5097.993 are codified.
27
CEQA‟s exclusion of archaeological site information from an
EIR reflects the state‟s strong policy in protecting Native
American artifacts.
Indeed, state law now requires a city or
county prior to amending a general plan to consult with affected
Native American tribes to preserve or mitigate impacts to Native
American artifacts that are located within the city or county‟s
jurisdiction.
(Gov. Code, § 65352.3, subd. (a)(1).)
As part of
that process, the city or county must, consistent with
guidelines developed by the Governor‟s Office of Planning and
Research, “protect the confidentiality of information concerning
the specific identity, location, character, and use of those
places, features, and objects.”
(Gov. Code, § 65352.3, subd.
(b).)
The Governor‟s Office of Planning and Research guidelines,
in turn, counsel local governments to “avoid including any
specific cultural place information within CEQA documents (such
as Environmental Impact Reports, Negative Declaration, and
Mitigated Negative Declarations) or staff reports which are
required to be available at a public hearing.
In such cases,
confidential cultural resource inventories or reports generated
for environmental documents should be maintained under separate
cover and shall not be available to the public.”
(Governor‟s
Office of Planning and Research, State of Cal. Tribal
Consultation Guidelines Supplement to General Plan Guidelines
(Nov. 14, 2005) p. 27.)
Working within these specific restrictions, the City
provided sufficient information in the EIR to satisfy CEQA‟s
28
general demand for full disclosure of the environmental setting.
As the trial court correctly found, the EIR provides sufficient
information to permit decision makers and members of the public
generally to assess the existence of confidential archaeological
resources on the site, the potential adverse impacts the project
would impose on those resources, and the effectiveness of the
specified mitigation measures in avoiding or reducing those
impacts to a level of insignificance.
The Foundation claims the lack of detailed information in
the EIR about the archaeological resources precluded meaningful
opportunity to comment on the project‟s effects on those
resources.
We disagree.
The public knew that of the 34
archaeological resources found on the site, all but eight would
be fully protected due to the project‟s redesign.
Of the
remaining eight, the public knew they would be subject to highly
regulated and observed data excavations.
CEQA did not require
the public to know, at the risk of vandalism and destruction of
the resources, the exact nature and location of the resources
being protected.
Indisputably, the City complied with the requirements of
CEQA.
Consequently, there is no prejudicial error.
The City
made a remarkably good faith effort at full disclosure of the
existence of archaeological resources on the site, but did so in
recognition of, and submission to, express prohibitions in CEQA
not to disclose information regarding the location, use and
character of the resources.
29
At oral argument, counsel for the Foundation reluctantly
agreed that the Foundation was not primarily concerned with the
sufficiency of the information the EIR eventually provided on
the eight affected archeological sites.
Indeed, responding to
questioning from the panel, counsel agreed the Foundation would
not be before the court on this issue had the information
provided in the Additional Responses about the eight sites been
included in the RDEIR.
Instead, counsel stated the Foundation‟s real CEQA concern
was that the information included in the Additional Responses
was not first included in the RDEIR, thereby depriving the
public of an opportunity to comment on the information as part
of the RDIER‟s public review.
The difficulty with this
argument, however, is that CEQA provides the remedy of
recirculation to address a deficient draft EIR, and the
information added to the Additional Responses did not trigger an
obligation to recirculate the RDEIR.
Thus, CEQA provides no
remedy for the fault in the RDEIR alleged by the Foundation.
Once a draft EIR has been circulated for public review,
CEQA does not require any additional public review of the
document before the lead agency may certify the EIR except in
circumstances requiring recirculation.
A lead agency must
recirculate an EIR when “significant new information” is added
to an EIR after the draft EIR has been circulated for public
review.
(Pub. Resources Code, § 21092.1; Guidelines, § 15088.5,
subd. (a).)
New information added to an EIR is not
“significant” unless “the EIR is changed in a way that deprives
30
the public of a meaningful opportunity to comment upon a
substantial adverse environmental effect of the project or a
feasible way to mitigate or avoid such an effect (including a
feasible project alternative) that the project‟s proponents have
declined to implement.”
(Guidelines, § 15088.5, subd. (a).)
“Significant new information” includes, for example, a
disclosure that:
(1) a new significant environmental impact
would result from the project or a new mitigation measure; (2) a
substantial increase in the severity of an environmental impact
would result unless mitigation measures are adopted; (3) a
feasible alternative or mitigation measure considerably
different from others previously analyzed would clearly lessen
the project‟s significant impacts but the project‟s proponents
decline to adopt it; or (4) the draft EIR “was so fundamentally
and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded.
(Mountain
Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043
[Mountain Lion Coalition].)”
(Guidelines, § 15088.5, subd.
(a).)
“Recirculation is not required where the new information
added to the EIR merely clarifies or amplifies or makes
insignificant modifications in an adequate EIR.”
(Guidelines, §
15088.5, subd. (b).)
The City effectively concluded the information added to the
Additional Responses about the eight cultural sites did not
constitute “significant information,” and it did not recirculate
the EIR.
As did the trial court, we apply the substantial
31
evidence test to the City‟s determination.
(Laurel Heights
Improvement Assn. v. Regents of University of California (1993)
6 Cal.4th 1112, 1135 (Laurel Heights II).)
We agree with the trial court‟s finding that substantial
evidence supported the determination not to recirculate the
RDEIR:
“Notably, the additional information released by [the
City] about the eight cultural resources requiring data recovery
excavation adds narrative detail about the resources‟
characteristics but not new substantive information which would
militate against the resources‟ cultural significance and need
for preservation.”
(Fn. omitted.)
“The information . . . did
not require recirculation of the EIR for public comment pursuant
to Public Resources Code section 21166 [regarding changes
necessitating a subsequent or supplemental EIR] and CEQA
Guidelines 15088.5 [regarding recirculating a draft EIR].
The
additional information about the eight cultural resources merely
clarified or amplified information in the EIR.”
Because recirculation was not required, we have no
opportunity or obligation under CEQA to review the adequacy of
the RDEIR divorced from the other documents that comprise the
EIR, including the Final EIR and the Additional Responses.
The Foundation argues recirculation is not the only remedy
for addressing a defective draft EIR.
It claims we can
invalidate the certification of the entire EIR based on the
alleged defective nature of the RDEIR.
It cites to Mountain
Lion Coalition, supra, 214 Cal.App.3d 1043, as the basis for
32
such authority.
Mountain Lion Coalition, however, is
inapposite.
That case concerned the state Fish and Game Commission‟s
failure to prepare an adequate second draft EIR in compliance
with a prior court order that had invalidated the first
environmental document.
The Court of Appeal sustained the trial
court‟s exercise of its continuing jurisdiction over the matter
and the grant of a writ of mandate against the second EIR
because the new draft failed to comply with the trial court‟s
earlier order.
(Mountain Lion Coalition, supra, 214 Cal.App.3d
at pp. 1051, 1052.)
The Commission abused its discretion by not
strictly following the prior order.
(Id. at p. 1052.)
Thus,
the remedy exercised by the court in the case is limited to its
unique factual situation of enforcing a prior court order.
Moreover, any precedential value of Mountain Lion
Coalition, as noted above, has been codified at Guidelines
section 15088.5.
Citing to the case, the Guideline requires
recirculation of an EIR if the “draft EIR was so fundamentally
and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded.”
(Guidelines, § 15088.5, subd. (a)(4).)
The City and the trial court determined the RDEIR‟s
analysis of the cultural resources was not so deficient, and
substantial evidence supports that determination.
Because the
RDEIR did not qualify for recirculation, and the entire EIR
satisfied CEQA‟s disclosure requirements for cultural resources,
33
the demands of CEQA are satisfied, and we do not, and cannot,
take any action against the RDEIR.
B.
Sewer pipeline’s growth-inducing impacts
The Foundation claims the EIR failed to analyze the growth-
inducing impacts that construction of an off-site sewer pipeline
to serve the project‟s 558 homes and an additional 524 homes
would create.
We disagree.
The EIR explained the pipeline‟s
growth-inducing impact, that it would remove an obstacle to
future growth.
No further analysis was required, as that growth
had already been expressly contemplated in the City‟s general
plan and the general plan EIR.
1.
Additional background information
a.
EIR’s analysis of pipeline’s growth-inducing
impacts
The project includes construction of an off-site sewer line
that will accommodate not only this project, but also the
eventual, additional development of 501 dwelling units to the
north of the project site and 23 units to the south.
The City
claims its zoning already provides for this additional
development in these locations, and the upgrade in the sewer
infrastructure is required by the South Placer Municipal
Utilities District (SPMUD) Master Plan‟s requirements for
providing sewer to the project and the additional development.
The RDEIR acknowledged the proposed sewer infrastructure
would generate a growth-inducing impact.
It stated that because
the SPMUD Master Plan included the additional development north
of the project site, the project‟s infrastructure was designed
34
to meet the needs of the project and this additional approved
development.
The RDEIR recognized, however, that any
development outside the project site would be required to
undergo discretionary approval by the City, including annexation
and subdivision map approval.
The Foundation accused the RDEIR of omitting details about
the sewer line‟s growth-inducing effects.
It alleged the FDEIR
failed to adequately analyze the significance of the growthinducing impact and it wrongly deferred mitigating the impact.
It claimed the EIR had to evaluate the growth-inducing impacts
of the sewer line, determine the significance of the growthinducing impacts, and, if the impacts are significant, identify
and discuss feasible mitigation measures.
The City responded to the Foundation‟s criticisms in its
Master Responses.
The City acknowledged the project‟s
development of the additional sewer capacity would eliminate “an
obstacle to development of these units, and, to that degree,
could be considered „growth-inducing.‟”
However, the City
disagreed with the Foundation‟s claim that CEQA required the
FDEIR to analyze the environmental impacts of the additional
development, which may or may not ever occur.
The City claimed
it was sufficient under CEQA for the EIR to acknowledge the
project is removing an obstacle to such future growth.
The City also stated there was a distinction between
inducing new growth and merely accommodating growth for which
the City has already planned:
“The City‟s General Plan already
designates the areas in question outside the project for the 501
35
additional units to the north and the 23 units to the south.
The City‟s long-term plans thus already call for the eventual
development of these sites, and the City has already certified
an EIR for its General Plan analyzing, at a programmatic level,
the environmental impacts of such future development.
A
project‟s growth inducing impacts can be a problem where a
project is inducing growth to occur which is not already planned
for [sic].
The present project does not raise this problem.
In
fact, the City is requiring the present project to size the
sewer pipes to accommodate this additional growth in order to be
consistent with the South Placer Municpal [sic] Utility
District‟s long-term infrastructure Master Plan.
The project‟s
growth „inducing‟ (or, rather, „accommodating‟) impacts thus do
not constitute a significant adverse environmental impact.”
b.
Trial court’s ruling
The trial court held the EIR‟s discussion of growthinducing impacts satisfied CEQA‟s requirements.
The EIR
acknowledged the pipeline was growth inducing in so far as it
removed an obstacle to residential development already
contemplated by the City‟s general plan and SPMUD‟s Master Plan.
The EIR did not need to analyze the environmental impacts of
that growth because the general plan EIR had already done so at
a programmatic level, the growth was not part of the project
being approved, and the growth will undergo separate CEQA review
when it is begun.
Before us, the Foundation claims the City misstated the
law, and, as a result, failed to describe adequately the
36
project‟s growth-inducing impacts and to evaluate the
environmental effects of the foreseeable off-site development.
2.
Analysis
CEQA requires an EIR to “include a detailed statement
setting forth . . . [t]he growth-inducing impact of the proposed
project.”
(Pub. Resources Code, § 21100, subd. (b)(5).)
Section 15126.2, subdivision (d), of the Guidelines explains
this requirement obligates an EIR to “[d]iscuss the ways in
which the proposed project could foster economic or population
growth, or the construction of additional housing, either
directly or indirectly, in the surrounding environment.
Included in this are projects which would remove obstacles to
population growth (a major expansion of a waste water treatment
plant might, for example, allow for more construction in service
areas).
Increases in the population may tax existing community
service facilities, requiring construction of new facilities
that could cause significant environmental effects.
Also
discuss the characteristic of some projects which may encourage
and facilitate other activities that could significantly affect
the environment, either individually or cumulatively.
It must
not be assumed that growth in any area is necessarily
beneficial, detrimental, or of little significance to the
environment.”
The EIR‟s discussion of the sewer line‟s growth-inducing
impacts satisfied this requirement.
The RDEIR and the Master
Comments explained the sewer improvements would provide part of
the infrastructure required later to undertake construction of
37
additional housing to the north and south of the project,
thereby removing, euphemistically speaking, “an obstacle to
development”; the present lack of sufficient sewer capacity.
The additional development would indeed tax existing sewage
capacity, so this project would alleviate that problem.
No further detail or analysis was required of the potential
impacts the additional planned development could cause.
An EIR
is not “required to make a detailed analysis of the impacts of a
project on housing and growth.
Nothing in the Guidelines, or in
the cases, requires more than a general analysis of projected
growth.
The detail required in any particular case necessarily
depends on a multitude of factors, including, but not limited
to, the nature of the project, the directness or indirectness of
the contemplated impact and the ability to forecast the actual
effects the project will have on the physical environment.
In
addition, it is relevant, although by no means determinative,
that future effects will themselves require analysis under
CEQA.”
(Napa Citizens for Honest Government v. Napa County Bd.
of Supervisors (2001) 91 Cal.App.4th 342, 369 (Napa Citizens).)
Here, more detail was not required for at least three
reasons.
First, the purpose and nature of this project was not
to facilitate additional development after the project is
completed.
In City of Antioch v. City Council (1986) 187
Cal.App.3d 1325, a case relied upon by the Foundation, the court
struck down the use of a negative declaration to conclude
construction of a proposed road and utility infrastructure
through undeveloped land would not have a significant effect on
38
the environment.
The court found the city needed to prepare an
EIR and analyze the impacts of future development that would
utilize the improvements where “the sole reason to construct the
road and sewer project is to provide a catalyst for further
development in the immediate area.”
(Id. at p. 1337.)
Here, the sole reason for constructing the sewer pipeline
is not to provide a catalyst for further development.
Rather,
it is first to meet the needs of the current project.
And the
nature of the project is not to facilitate additional
development.
Second, the contemplated impact on growth is indirect.
Although the sewer line will provide essential capacity for the
additional housing, it removes only one of potentially numerous
obstacles and approval requirements for developing the
additional housing that may arise if and when an application to
develop it is ever submitted.
Third, any future effects of that additional development
will undergo CEQA analysis.
In fact, in this case, that growth
has already been analyzed in the City‟s general plan EIR and was
contemplated in the general plan and the SPMUD Master Plan.
The
possible development‟s general impacts had already been
considered and approved on a program level.
CEQA did not
require the City to redo that analysis in this project EIR as
part of the growth-inducing impacts analysis.
(Pub. Resources
Code, § 21094, subd. (a).)
The Foundation claims there is no evidence in the record
that the general plan EIR actually considered the impacts from
39
the proposed additional housing, and thus the City cannot rely
upon it.
It faults the City for attempting to rely on the
general plan EIR without complying with CEQA‟s procedures for
tiering from another EIR or for incorporating by reference a
portion of another EIR.
(g).)
(See Guidelines, § 15152, subds. (a),
The Foundation admits the general plan EIR was mentioned
in the City‟s Master Responses and listed in the references
section of the RDEIR, but that allegedly was not good enough.
Also, the general plan EIR itself is not included in the
administrative record.
A reasonable person would have understood the City was
incorporating analysis from its general plan EIR and the SPMUD
Master Plan when it referenced the reader to those documents and
stated those analyses had already evaluated the environmental
impacts of the additional growth.
The opinions of the staff
expressed in the FEIR are evidence the general plan EIR includes
the analysis, and we are required to presume that EIR is valid.
(River Valley Preservation Project v. Metropolitan Transit
Development Bd. (1995) 37 Cal.App.4th 154, 178.)
The EIR‟s
discussion thus referenced the reader to the additional
information.
For all of these reasons, CEQA required nothing more in
this EIR concerning growth-inducing impacts than what is already
contained in the document.
The EIR informed decision makers and
the public about the pipeline‟s growth-inducing effects and
referenced where those impacts were reviewed in more detail.
That was enough.
40
C.
Oak tree removal
The Foundation claims the EIR fails to account for all of
the oak trees that will be removed due to the project.
To the
contrary, the EIR disclosed the loss of all oak trees that would
be affected by the project and determined the impact was
significant and unavoidable.
The EIR satisfied CEQA‟s
requirements.
1.
Additional background information
a.
EIR’s analysis of project’s impact on oak trees
The RDEIR states oak woodland covers approximately 185
acres, or 29 percent, of the project area.
The woodland
provides a number of important wildlife resources, including
food, shelter, roosting, and breeding sites.
counted 28,246 trees on the project site.
An inventory
Development of the
project would result in the loss of 7,422 trees.
Construction
of the major roadways would remove 1,632 trees, and construction
of minor streets and small lots would remove 5,790 trees.
According to the RDEIR, these calculations of trees to be lost
do not include any trees that would be removed from commercial
areas.
The City regulates oak tree removal pursuant to general
plan polices, its Oak Tree Preservation Ordinance, and, in this
instance, by the terms of the development agreement between the
City and real parties in interest.
The general plan, in Policy
4 of the plan‟s Open Space, Conservation and Recreation element,
states it is the City‟s policy to “encourage the protection of
41
oak trees, including heritage oaks, and other significant
vegetation from destruction.”
The Oak Tree Preservation Ordinance implements this policy
by requiring a permit for the removal of an oak tree that has a
trunk diameter at breast height of six inches or more.
Mitigation is required and can be made either by tree
replacement or payment into the City‟s oak tree preservation
fund.
The development agreement between the City and real parties
in interest also addressed oak tree removal.
The agreement
requires real parties in interest to grant to the City open
space and conservation easements for an oak tree preserve and an
open space trail system.
The agreement also requires real
parties in interest to construct a bicycle/pedestrian trail
system.
In exchange for real parties in interest fulfilling
these obligations, the City would deem the preserve and trail
system as full mitigation for oak tree removal under the Oak
Tree Preservation Ordinance so long as the number of oak trees
removed does not exceed 25 percent of the oak trees in the
project.
The development agreement also stated that trees removed
for constructing the major roadways, estimated at 1,632 trees,
would not count towards the 25-percent cap.
Excluding those
trees from the total estimated number of trees to be lost,
7,422, results in a loss of 5,790 trees, or about 20.5 percent
of the total number of trees on the project site, well within
the 25-percent cap.
42
Also, the RDEIR states trees in the proposed commercial
areas were not included in the final calculations for tree
removal because the Oak Tree Preservation Ordinance does not
apply to commercial lands.
The RDEIR stated that despite the mitigation required by
the development agreement, that agreement did not address
removal of trees located within the major roadways associated
with the off-site sewer pipeline.
Thus, “the loss of trees
resulting from the ultimate anticipated development of the
project and associated infrastructure would be considered to be
a significant effect.”
(Original boldface type and italics.)
To mitigate that effect, the RDEIR recommended that the City
enforce the mitigation measures agreed to in the development
agreement, and that real parties in interest develop an oak tree
mitigation strategy for impacts to oak trees along the off-site
sewer line.
The strategy had to be reviewed and approved by the
City pursuant to the Oak Tree Preservation Ordinance prior to
recording a final subdivision map.
Even with this mitigation,
however, the impact remained significant and unavoidable.
The City received a number of comments on the RDEIR
questioning its analysis of trees to be removed by construction
of the major roadways as well as the adequacy of the development
agreement to mitigate impacts.
In its Master Responses, the
City responded to the comments by clarifying that oak trees
removed for construction of three major roadways through the
project would not be counted as trees removed by real parties in
interest for purposes of the development agreement.
43
Rather, mitigation for the loss of those trees would be
applied pursuant to Policy 4 of the general plan‟s Open Space,
Conservation and Recreation element.
The general plan EIR,
adopted in 1991, had found that impacts on biological resources
from constructing roadways where none had existed were
significant and unavoidable.
Policy 4.
In response, the City adopted
It then implemented that policy through the Oak Tree
Preservation Ordinance, and through the planning review and land
use entitlement process requiring tree replacement and open
space preservation.
The City stated mitigation for oak tree loss from
construction of general plan roadways throughout the City is
accomplished “at a Citywide level” by implementing Policy 4.
It
said mitigating the loss of trees from the project‟s major
roadways, which the City did not count as losses caused by the
project, would similarly be accomplished by implementation of
Policy 4.
After receiving still additional criticisms, the City in
its Additional Responses further clarified its analysis of the
potential loss of oak trees.
The City concluded the impacts to
oak trees lost from construction of the major roadways in the
project “will be significant and unavoidable,” notwithstanding
implementation of mitigation measures pursuant to the general
plan policy.
In contrast, the City found that impacts to oak
trees from development of the project, other than for trees lost
from constructing the major roadways, would be mitigated to
less-than-significant through implementation of the development
44
agreement conditions and the requirements of the Oak Tree
Preservation Ordinance.
The City corrected the RDEIR to read that the development
agreement did not address removal of trees located within the
major roadways or associated with the off-site sewer alignment.
Thus, the loss of trees from ultimate development of the project
would be a significant impact.
In its CEQA findings made upon approving the project, the
City stated impacts “related to loss of oak trees on the project
site due to project implementation” had not been mitigated to a
less-than-significant level and were therefore significant and
unavoidable impacts.
b.
Trial court’s ruling
The trial court determined the EIR‟s analysis of project
impacts on oak trees satisfied the requirements of CEQA.
Regarding oak trees to be removed for construction of the major
roadways, the court stated the EIR properly analyzed and
mitigated those impacts by relying on the general plan policy
and concluding the loss of these trees was significant and
unavoidable.
The court also determined the EIR had, in fact, analyzed
the loss of trees on proposed commercial lots.
Contradicting
the statement in the EIR that oak trees to be removed from
commercial lots were not considered, the tree inventory report
states the 5,790 trees to be removed for purposes other than
construction of the major roadways were “„located within the
planned residential, commercial and easement areas.‟”
45
In light
of this evidence, the trial court concluded the statement in the
EIR was erroneous and that oak trees to be removed from
commercial areas were in fact considered in the EIR.
The Foundation asserts the City violated CEQA by excluding
from the RDEIR any analysis of the 1,632 oak trees to be lost
due to construction of the major roadways.
It also faults the
City‟s response in the Master Responses that these oak trees
would be addressed under the City‟s general plan policy and Oak
Tree Preservation Ordinance.
It claims this discussion does not
satisfy CEQA because, among other reasons, the general plan
policy is not specific to loss of trees caused by construction
of roadways, the City‟s CEQA findings do not reference these
policies as a mitigation measure, the Master Findings do not
comply with CEQA procedures regarding reference to other EIRs,
and the general plan EIR is not included in the record and we
thus cannot determine whether it in fact addressed the loss of
oak trees due to construction of major roads in the City.
The Foundation also claims the City violated CEQA by
excluding from analysis the loss of oak trees from the project‟s
commercial areas.
It asserts the trial court‟s conclusion that
these oak trees were in fact included in the analysis is not
supported by evidence.
2.
Analysis
An EIR, when looked at as a whole, must provide a
reasonable, good faith disclosure and analysis of the project‟s
environmental impacts.
(Laurel Heights I, supra, 47 Cal.3d at
46
p. 392.)
This EIR‟s analysis of the project‟s impacts on oak
trees satisfied this standard.
The EIR disclosed 1,632 oak trees would be lost to
construction of major roadways.
significant.
It determined this impact was
Mitigation for these impacts was outside the scope
of the development agreement and was to be evaluated and
mitigated on a city-wide level pursuant to the general plan
policy and the City‟s Oak Tree Preservation Ordinance, but even
so, the impact remained significant and unavoidable.
The EIR‟s analysis provided decision makers and the public
with a sufficient degree of information on which they could
determine whether to approve the project in light of the
project‟s unavoidable environmental impacts.
If the project was
to be built, oak trees would be lost due to road construction.
Mitigation was limited to what the City could enforce through
its Oak Tree Preservation Ordinance, but that mitigation would
not render the impact insignificant.
On this point, the EIR did
not need to be more specific than it already was.
The Foundation‟s other arguments also do not fare well.
The Foundation claims the EIR violated CEQA by relying on the
general plan policy and the general plan EIR without
incorporating any discussion in those documents by reference,
without summarizing any portion that was incorporated, or
without including a copy of the general plan EIR in the record.
However, the EIR clearly quoted the general plan policy and
summarized portions of the general plan EIR for use in this EIR.
In addition, the EIR itself is substantial evidence of what is
47
said in the general plan and general plan EIR.
This discussion
was sufficient to enable the decision makers and the public to
render an environmentally informed judgment on the project.
We also reject the Foundation‟s attack on the trial court‟s
factual finding that the EIR analysis included the impacts to
trees on lands designated for commercial uses.
Substantial
evidence supports the trial court‟s resolution of the conflict
between the tree inventory report and the EIR.
The EIR
discussion was based on the inventory report, and the latter
indicates trees on commercial land were considered.
That is
sufficient evidence to pass CEQA muster.
D.
California black rail
The Foundation asserts the City failed to adopt a legally
enforceable mitigation measure to protect against impacts to the
California black rail, a protected bird species.
The Foundation
argues the mitigation measure that was adopted wrongfully defers
mitigation, and it also imposes a permit requirement that does
not exist in law.
We conclude the EIR‟s analysis of the project‟s impacts on
the black rail complied with CEQA.
The EIR proposed mitigation
measures that are legally enforceable and do not unlawfully
defer mitigation.
1.
Additional background information
a.
EIR’s analysis of effect on black rails
The RDEIR describes the black rail‟s status.
The bird is
listed under the California Endangered Species Act (Fish & G.
Code, § 2050 et seq.) as a threatened species.
48
The Legislature
has also designated the black rail as a “fully protected bird.”
(Fish & G. Code, § 3511.)
Birds designated as “fully protected”
may not be taken (killed) or possessed at any time, and no state
law may be construed to authorize the issuance of licenses or
permits to take such birds.
(Fish & G. Code, § 3511.)
The RDEIR discloses that the marshes on the project site
are a potentially suitable habitat for the black rail.
However,
at the time of the RDEIR‟s preparation, no black rails had been
observed on the site.
The RDEIR determined the project could create a potentially
significant impact to freshwater marsh-occupying birds such as
the black rail.
Although no permanent impacts were expected due
to the incorporation of a buffer around the marshes, temporary
impacts could occur due to “culvert/outfall installation,” as
well as construction of the off-site sewer line.
To mitigate these impacts to a less-than-significant level,
the RDEIR recommended, as Mitigation Measure 4.8MM-13, that real
parties in interest conduct bird surveys within 30 days of
performing any ground-disturbing activities.
If no birds were
identified, no further mitigation would be required.
If a non-
listed species was identified, construction activities would be
scheduled to occur outside of the breeding season and/or
individual birds would be relocated away from the impact area
according to applicable governmental protocols.
Monitoring of
construction would be conducted by a qualified biologist and
reported to the appropriate agency.
49
If a listed species, such as the black rail, is identified,
real parties in interest would pursue appropriate permitting
with the agency having regulatory authority over the species.
Mitigation and monitoring measures stipulated in the permitting
instrument would be imposed.
In response to comments made to the RDEIR, real parties in
interest commissioned a survey of the project site by a black
rail expert.
The survey, conducted in June 2006, detected one
black rail in a large central wetland in the project site‟s main
drainage.
The expert stated real parties in interest would have
to consult with the Department of Fish and Game, as the wetland
was occupied black rail habitat and the development called for a
road to bridge the wetland.
The expert recommended the wetland
be clearly delineated during construction and no destructive
entry be allowed, and that roadways and other drains that might
put large quantities of water and noxious runoff into the
wetland or cause destructive siltation be routed to prevent
those effects from happening.
The expert noted he had “observed Black Rails existing
continuously over many years in close proximity to the human
disturbances associated with residences, household pets,
livestock, intense traffic disturbance, and the like.
Wetland
islands located where such disturbances are to occur should not
be written off as habitat of no future potential; to the
contrary, they are worthy of protection and maintenance.”
In its Additional Responses, the City reported on the
survey results and recommendations, and it determined it had
50
sufficiently mitigated any impacts to the black rail.
The City
stated the expert‟s proposed mitigation measures were already
included as part of the project design or as mitigation measures
contained elsewhere in the RDEIR addressing impacts to wetland
habitat:
“For example, Mitigation Measures 4.8MM-4(d) and
4.8MM-7 both require fencing and avoidance of wetland areas, and
Mitigation Measures 4.8MM-8 and 4.11MM-5(c) address stormwater
runoff.
Likewise, under the project as designed, all stormwater
runoff from the project site (including roads) will be treated
prior to discharge and then discharged so as not to allow large
quantities of water, noxious runoff, or siltation in any wetland
areas, including this central wetland.
Thus, Mitigation Measure
4.8MM-13 [the measure recommended in the RDEIR specifically to
address impacts to freshwater marsh fowl], together with these
other mitigation measures and project design features, will
ensure mitigation of impacts to the black rail.”
In its findings approving the project, the City adopted all
of the mitigation measures referenced in its Additional
Responses that address potential impacts on freshwater marshoccupying birds and their habitats.
These measures require the
real parties in interest to, among other things, obtain
necessary permits from the Army Corps of Engineers and the
Department of Fish and Game that regulate developments affecting
wetland habitat, replace affected on-site wetlands on a “no-netloss” basis, use high visibility fencing during construction to
mark off and prevent inadvertent encroachment into wetland
habitat; develop a siltation and erosion control program for
51
stream crossing areas prior to construction; implement a
management plan to minimize production of site runoff and
eliminate water quality contaminants originating from the
project site; and conduct bird surveys and comply with
established protocols if freshwater marsh-occupying birds are
located, including relocation of non-listed species, preventing
construction during breeding season, and complying with all
mitigation measures imposed by regulatory agencies in the event
listed species such as the black rail are discovered.
b.
Trial court’s ruling
At trial, the Foundation claimed the EIR failed to analyze
the project‟s impacts to the black rail and its habitat, failed
to discuss mitigation measures to reduce such project impacts,
and improperly deferred mitigation until future surveys identify
the black rail on the site.
Foundation‟s claims.
The trial court rejected the
The court ruled that the Foundation‟s
arguments disregarded the EIR‟s detailed analysis of project
impacts to riparian and wetland habitat and its specification of
mitigation measures to protect those habitats.
Those measures
apply to wetlands on the project even when no black rails are
found on the site.
The trial court also ruled that the Foundation‟s arguments
failed to recognize that the EIR‟s mitigation measures set forth
mandatory procedures to be followed if a protected species like
the black rail was identified on site, including procedures
pursuant to the California Endangered Species Act.
52
The court
found these measures did not improperly defer the formulation of
mitigation measures.
Before us, the Foundation claims the City failed to adopt
legally enforceable mitigation measures to protect the black
rail.
It claims the mitigation measure for protecting listed
species, Mitigation Measure 4.8MM-13, defers the formulation of
mitigation to a vague, future regulatory process.
It asserts
the trial court‟s interpretation of this process to include a
permitting process from the Department of Fish and Game is not
supported by the EIR‟s express language, which does not mention
specifically a Fish and Game permit.
The Foundation also argues the trial court‟s assumption
that the Department of Fish and Game would be the appropriate
permitting authority is incorrect.
Because the black rail is a
“fully protected” bird, the Department of Fish and Game has no
authority to permit any activity that could result in the
incidental taking of that species.
Thus, the Foundation argues,
any future mitigation strategy based on a Department of Fish and
Game permit would not be enforceable.
2.
Analysis
CEQA requires an EIR to describe feasible mitigation
measures which could minimize significant adverse impacts.
(Guidelines, § 15126.4, subd. (a)(1).)
Measures must be
provided for each significant environmental impact identified in
the EIR.
(Guidelines, § 15126.4, subd. (a)(1)(A).)
“Formulation of mitigation measures should not be deferred
until some future time.
However, measures may specify
53
performance standards which would mitigate the significant
effect of the project and which may be accomplished in more than
one specified way.”
(Guidelines, § 15126.4, subd. (a)(1)(B).)
“Impermissible deferral of mitigation measures occurs when
an EIR puts off analysis or orders a report without either
setting standards or demonstrating how the impact can be
mitigated in the manner described in the EIR.”
(City of Long
Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th
889, 915-916.)
Here, there was no impermissible deferral.
The RDEIR fully
evaluated any impacts the project would have to freshwater
marsh-occupying birds, which included the black rail.
It
determined there would be no permanent impacts to these birds
due to the project‟s design of protecting wetlands, and it
proposed mitigation measures to minimize the project‟s possible
temporary impacts.
Thus, mitigation of impacts to black rails
and all other freshwater marsh-occupying birds was not
improperly deferred.
The Foundation‟s attack on the mitigation measure‟s
requiring compliance with regulatory permitting requirements if
an endangered species such as the black rail is discovered is a
red herring.
“A condition requiring compliance with
environmental regulations is a common and reasonable mitigating
measure.
[Citation.]”
(Sundstrom v. County of Mendocino (1988)
202 Cal.App.3d 296, 308.)
The condition is particularly
reasonable here because the City required real parties in
interest to obtain all necessary federal and state permits from
54
the Army Corps of Engineers and the state Department of Fish and
Game regulating the project‟s impacts on wetlands, which happen
also to be the very procedures in which the project‟s potential
impacts on endangered species would be addressed, arising as
they would in this project by means of impacts to wetlands.
(See 16 U.S.C. § 1536; Fish & G. Code, § 1600 et seq.)
That a permit cannot be issued to authorize taking a black
rail is irrelevant.
At issue is whether requiring real parties
in interest to obtain the permits that must be obtained and to
comply with the mitigation measures imposed on those permits, as
well as those imposed by the City, as a way to prevent the
project from taking black rails is an enforceable mitigation
measure.
We conclude it is.
Courts have approved deferring the formulation of the
details of a mitigation measure where another regulatory agency
will issue a permit for the project and is expected to impose
mitigation requirements independent of the CEQA process so long
as the EIR included performance criteria and the lead agency
committed itself to mitigation.
(Endangered Habitats League,
Inc. v County of Orange (2005) 131 Cal.App.4th 777, 793-794.)
Here, the EIR stated the performance standard regarding
black rails clearly:
they are “fully protected birds,” and thus
the project cannot take them incidentally or otherwise.
Moreover, the City committed to mitigate any impact to black
rails by requiring real parties in interest to obtain all
necessary permits regarding the project‟s impacts on the site‟s
wetlands.
In this circumstance, this was a sufficient
55
mitigation measure that did not violate the requirements of
CEQA.
E.
Project’s consistency with City’s general plan
The Foundation claims the project as approved is
inconsistent with the City‟s general plan.
It asserts the
project violates the general plan by permitting construction of
a roadway on land designated as open space.
We, like the trial
court, conclude the City did not abuse its discretion in
determining the proposed road did not violate its general plan.
1.
Additional background information
The City‟s general plan requires the City to apply open
space designations to all land located within 50 feet from the
banks of streams.
The Foundation claims the City violated this
policy when it approved a road, Nature Trail Way, to make two
limited encroachments into the 50-foot buffer established for
Clover Creek.
In the FEIR, the City determined these two encroachments
into the buffer, as well as a pedestrian and bicycle path in the
buffer zone, were consistent with the general plan.
states:
The FEIR
“The City of Rocklin has historically allowed for the
construction of necessary roadways and public bike trails within
the 50-foot open space buffer surrounding creeks.
[¶]
Additionally, the City determined that if Nature Trail Way was
moved outward beyond the 50-foot buffer, the road would require
additional grading and the clearing of a number of oak trees
which exist on the western side of the proposed location for
Nature Trail Way.
The City considers the placement of Nature
56
Trail Way within the 50-foot open space buffer area to be the
environmentally superior design choice due to the fact that
placement outside of the buffer at these locations would result
in additional hillside grading and additional loss of oak
trees.”
The Foundation claims the City‟s approval of these
encroachments into the 50-foot buffer violates the general plan.
2.
Analysis
“A project is consistent with the general plan „“if,
considering all its aspects, it will further the objectives and
policies of the general plan and not obstruct their
attainment.”‟
[Citation.]
A given project need not be in
perfect conformity with each and every general plan policy.
(Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23
Cal.App.4th 704, 719 (Sequoyah).)
To be consistent, a
subdivision development must be „compatible with‟ the
objectives, policies, general land uses and programs specified
in the general plan.
(Id. at pp. 717-718.)”
(Families Unafraid
to Uphold Rural etc. County v. Board of Supervisors (1998) 62
Cal.App.4th 1332, 1336 (FUTURE).)
A city‟s determination that a project is consistent with
the city‟s general plan “carries a strong presumption of
regularity.
(Sequoyah, supra, 23 Cal.App.4th at p. 717.)
This
determination can be overturned only if the [city] abused its
discretion -- that is, did not proceed legally, or if the
determination is not supported by findings, or if the findings
are not supported by substantial evidence.
57
(Ibid.)
As for
this substantial evidence prong, it has been said that a
determination of general plan consistency will be reversed
only if, based on the evidence before the local governing body,
„. . . a reasonable person could not have reached the same
conclusion.‟
(No Oil, Inc. v. City of Los Angeles (1987) 196
Cal.App.3d 223, 243.)”
(FUTURE, supra, 62 Cal.App.4th at p.
1338.)
When we apply this standard, “the nature of the policy and
the nature of the inconsistency are critical factors to
consider.”
(FUTURE, supra, 62 Cal.App.4th at p. 1341.)
In
addition, general consistencies with plan policies cannot
overcome “specific, mandatory and fundamental inconsistencies”
with plan policies.
(Id. at p. 1342.)
Reviewing the evidence that was before the City, no
reasonable person would have determined the project was
inconsistent with the general plan.
Allowance of the
encroachment into the 50-foot buffer in this case actually
furthers the general plan‟s policies.
The open space land use
designation required by the general plan is designed to protect
fish and wildlife, natural vegetation and habitat, and scenic
areas.
The buffer is used to protect those areas from
development.
In this case, strictly enforcing the buffer
defeats its purposes and likely conflicts with other general
plan policies, as the City would be required to perform
additional grading into a hillside and remove additional oak
trees.
58
Thus, any inconsistency that exists here is not
fundamental.
Nor was it not discussed.
A reasonable person,
seeking to implement the general plan‟s policies of preserving
habitat, open space, and scenic vistas, clearly would have
concluded the deviation from the buffer zone requirement in this
instance better fulfills the general plan‟s objectives and
requirements.
The City did not abuse its discretion in finding
the project is consistent with the general plan.
III
Loomis’s Appeal
A.
Impacts on views
Loomis claims the EIR failed to analyze sufficiently the
project‟s impacts on views or to discuss possible mitigation
measures to reduce those impacts.
It claims no evidence
supports the EIR‟s conclusion that impacts on views from western
Loomis will not be significant, and that the City violated CEQA
by not proposing measures to mitigate the impacts on views from
Sierra College Boulevard.
We disagree, and find the EIR
adequately analyzes and mitigates the project‟s impacts on
views.
Some residents of Loomis may not want their views
towards Clover Valley to change, but CEQA is satisfied if the
impacts are disclosed, analyzed, and feasibly mitigated.
1.
Additional background information
a.
EIR’s analysis of impacts on views
The RDEIR explains that Loomis lies to the east and
southeast of the project site.
Only a limited portion of the
site is visible to the public from those areas.
59
A portion on
the site‟s eastern part is visible from areas within Loomis and
by travelers along a short portion of Sierra College Boulevard.
The site‟s southern part is visible to immediately adjoining
residents of the existing Loomis subdivision to the east.
The RDEIR, in Impact 4.3I-1, states implementation of the
project, with its construction of roadways, infrastructure, and
single-family homes, “would constitute a substantial permanent
alteration of the existing visual character of the project
site.”
The grading required for the project will eliminate
existing vegetation on the project site, substantially altering
the site‟s aesthetic value.
This impact is considered
significant and unavoidable, even when mitigated by requiring
real parties in interest to submit and comply with a revegetation plan for all areas affected by grading.
The RDEIR also lists as two specific impacts the impacts
the project will have on views from the Loomis area.
The first,
Impact 4.3I-2, lists as significant and unavoidable the impacts
the project will have on views from Sierra College Boulevard and
the northwest Loomis area.
Sierra College Boulevard runs
contiguous to the project site‟s northeast border along the
site‟s eastern ridgeline.
At that point, referred to by the
RDEIR as a “summit,” the existing land uses distinctly change
from rural urbanization to undeveloped land.
The project would
result in residential and commercial development being built
along that portion of Sierra College Boulevard, eliminating the
current demarcation between developed and undeveloped land.
The
RDEIR determined this un-buffered change would be a significant
60
and unavoidable impact to persons traveling along Sierra College
Boulevard and who live in Loomis north of the “summit.”
The
RDEIR claims there are no feasible mitigation measures for this
impact.
The second relevant impact, Impact 4.3I-3, lists as lessthan-significant any aesthetic impact the project will have on
views from western Loomis.
Residents of that area will have
unrestricted views of the development proposed for the site‟s
southeastern ridgeline, south of the “summit” and west of Del
Mar Avenue.
The project calls for building single-family
residences along the top of that ridge, some 100 to 150 feet
above Loomis‟s valley floor.
The slope between the Loomis
residences and the project‟s hilltop residences will not be
developed and will act as a buffer.
The RDEIR claims Impact 4.3I-3 is less-than-significant and
requires no mitigation.
The RDEIR states that “[d]espite the
project‟s high visibility, the project uses would be consistent
with the surrounding off-site homes.
[¶]
Viewers from this
area are expected to tolerate a low-to-moderate level of visual
change because of the quality of existing views, and because
views from residences are particularly sensitive to the
residents.
Although the project would result in a high level
of change as viewed from this area, the proposed project
incorporates buffers in the southeast area of the project
site. . . .
[T]he proposed project includes a buffer zone of
250-280 feet at the crest of the hill on the southeastern
boundary of the proposed project site.
61
Therefore, the impact of
the anticipated development and the proposed project is
considered less-than-significant.”
(Original boldface type and
italics.)
In its Master Comments of the FEIR, the City responded to
public comments critical of the RDEIR‟s conclusion that certain
view-related impacts were less-than-significant.
The City
claimed the comments misunderstood the RDEIR‟s discussion:
“[T]he overall aesthetic impact of developing the project site
is significant and unavoidable due to the loss of existing
visual resources within the project site.
The discussions under
Impacts 4.3I-3 through 4.3I-6 address the additional question of
the aesthetic consistency of the proposed development with
surrounding development.
Because the project proposes
development that is consistent with surrounding development,
this additional impact is deemed less than significant, even
thought the overall aesthetic impact is significant and
unavoidable.
[¶]
As explained in the RDEIR, aesthetic impacts
to viewers from western Loomis are not considered to be
significant, due to the visual consistency of project
development with surrounding off-site homes and the
incorporation of a visual buffer of 250-280 feet at the crest of
the hill.
Contrary to the statement made in the comment, the
EIR does not state that homes in the development site will be
„invisible‟ to Loomis residents.
To the contrary, the RDEIR
acknowledges that development would be visible.”
omitted.)
62
(Italics
The City in the FEIR also responded to criticism that the
RDEIR did not contain any feasible mitigation measures to
minimize the significant impact on views along Sierra College
Boulevard.
The City disagreed with the claim, stating that
“[m]easures to mitigate the impact (though not to a less-thansignificant level) would be implemented as part of the project
description, including landscaping and other design features to
help decrease impacts related to aesthetics and visual
resources.
The City did not determine that any additional
mitigation beyond those included with the project design would
be feasible.
Additionally, the Alternatives chapter [of the
RDEIR] includes several alternatives for the proposed project,
such as the Maximum of 180 Units Alternative, which would
decrease the total buildout of the proposed project and
potentially decrease these impacts.”
b.
Trial court’s ruling
Loomis challenged the EIR‟s analysis of the project‟s
impacts on views.
It claimed the analysis was contradictory by
stating alteration of views from western Loomis would be lessthan-significant while at the same time stating viewers from
this area would experience a high level of change.
Loomis also claimed the analysis was conclusory.
The EIR
claimed impacts to views from Sierra College Boulevard were
significant and unavoidable, and that no feasible mitigation
measures existed to mitigate this impact.
Loomis argued there
was no substantial evidence to claim no feasible mitigation
measures existed.
63
The trial court disagreed with both of Loomis‟s arguments.
It found the City clarified in the Master Responses that it was
addressing two separate impacts on views and there was no
contradiction.
The project‟s overall aesthetic impact was
significant due to the loss of resources within the project
site.
However, when the project is considered in relation to
surrounding development, the impact is less than significant
because both the project and the surrounding uses consist
primarily of residential development.
The trial court also determined the EIR did not err in
concluding the impact to views along Sierra College Boulevard
was significant and unavoidable because no feasible mitigation
measure is available.
It determined substantial evidence in the
record established that the project‟s overall aesthetic impact
was significant and unavoidable despite efforts to minimize the
impact.
The court did not directly discuss the EIR‟s conclusion
that no feasible mitigation measures were available to mitigate
this impact.
Loomis claims the trial court‟s ruling is incorrect.
It
claims (1) substantial evidence does not support the EIR‟s
conclusion that view impacts from western Loomis toward the
project‟s southeast border will be less than significant;
(2) Impact 4.3I-3 is internally inconsistent by concluding the
project will result in a high level of change to residents of
western Loomis but the impact is less than significant; and
(3) the EIR fails to discuss possible mitigation measures to the
substantial and unavoidable impacts to views from Sierra College
64
Boulevard or to substantiate that any possible mitigation
measures were infeasible.
2.
Analysis
“Aesthetic issues are properly studied in an EIR to assess
the impacts of a project.
(Pub. Resources Code, § 21100, subd.
(d); Pocket Protectors v. City of Sacramento (2004) 124
Cal.App.4th 903, 936–940.)
However, a lead agency has the
discretion to determine whether to classify an impact described
in an EIR as „significant,‟ depending on the nature of the area
affected. (Guidelines, § 15064, subd. (b); Mira Mar Mobile
Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492–
493 (Mira Mar); National Parks & Conservation Assn. v. County of
Riverside (1999) 71 Cal.App.4th 1341, 1357.)
. . .
“„In exercising its discretion, a lead agency must
necessarily make a policy decision in distinguishing between
substantial and insubstantial adverse environmental impacts
based, in part, on the setting.
subd. (b).)
(CEQA Guidelines, § 15064,
Where the agency determines that a project impact
is insignificant, an EIR need only contain a brief statement
addressing the reasons for that conclusion.
(CEQA Guidelines,
§ 15128.)‟
(Mira Mar, supra, 119 Cal.App.4th at pp. 492–493.)
[¶]
[¶]
. . .
“The possibility of significant adverse environmental
impact is not raised simply because of individualized complaints
regarding the aesthetic merit of a project.
(See Bowman v. City
of Berkeley (2004) 122 Cal.App.4th 572, 584–593.)
„Under CEQA,
the question is whether a project will affect the environment of
65
persons in general, not whether a project will affect particular
persons.‟
(Mira Mar, supra, 119 Cal.App.4th at p. 492.)”
(Eureka Citizens for Responsible Government v. City of Eureka
(2007) 147 Cal.App.4th 357, 375-376 (Eureka Citizens), fn.
omitted.)
Disagreements regarding the adequacy of an EIR‟s impact
analysis will be resolved in favor of the lead agency if any
substantial evidence supports the lead agency‟s determination.
(See Laurel Heights I, supra, 47 Cal.3d at p. 409; see also 1
Kostka & Zischke, Practice Under the Cal. Environmental Quality
Act (Cont.Ed.Bar 2d ed. 2008) § 13.26, pp. 637-638.)
Loomis claims the EIR‟s conclusion that impacts on views
from western Loomis toward the project‟s southeastern border
would be a “high level” of change but would not be significant
is not supported by substantial evidence and is contradictory.
We disagree.
The EIR stated an impact to aesthetic resources
would be considered significant if the proposed project would
“[s]ubstantially alter or degrade the visual character or
quality of the project site; or [¶] [h]ave a substantial adverse
effect on a scenic vista . . . .”
Using this standard of
significance, the EIR concluded the impacts on views from
western Loomis toward the project‟s southeastern border would be
less than significant.
Substantial evidence supports this conclusion, and the
finding is not contradictory.
The EIR claimed the impact would
not be significant due to the buffer between the valley floor
and the new homes to be built on the top of the ridge.
66
Although
it is a “high level” of change, it is not a significant impact
because the area is already a residential area.
By containing
factual statements addressing why this impact is not
significant, the EIR provided substantial evidence supporting
its conclusion, and the conclusion is not contradictory.
(Eureka Citizens, supra, 147 Cal.App.4th at p. 376.)
Loomis also faults the EIR for not setting forth feasible
mitigation measures to minimize the significant impacts to views
along Sierra College Boulevard at the project‟s northeast
border.
It suggests the EIR could have recommended measures
such as reduced building sizes, screening using vegetation,
avoiding building in key locations on the ridge, limiting the
height of homes on the ridge, imposing design requirements such
as colors to blend with the hillsides, or modifying building
features to reduce light and glare.
Instead, Loomis claims, the
EIR simply concluded the significant impacts could not be
mitigated.
EIRs are to identify feasible mitigation measures for each
significant impact.
subd. (a).)
(Guidelines, §§ 15121, subd. (a), 15126.4,
“Although an EIR must identify proposed mitigation
measures for adverse effects of the project, „“CEQA does not
require analysis of every imaginable alternative or mitigation
measure; its concern is with feasible means of reducing
environmental effects.”‟
[Citation].”
(Concerned Citizens of
South Central L.A. v. Los Angeles Unified School Dist. (1994) 24
Cal.App.4th 826, 841, original italics.)
An EIR need not
identify and discuss mitigation measures that are infeasible.
67
Here, the FEIR noted that feasible mitigation measures,
including some similar to those suggested by Loomis would be
imposed at the design stage.
These included landscaping and
specific design features to help decrease aesthetic impacts.
In another section, the FEIR also explained why one of
Loomis‟s proposed mitigation measures, relocating lots from off
of the ridge, was not feasible.
Such an action may not be
legally feasible in light of the commitments the City made to
real parties in interest in the development agreement.
Moreover, relocating development off the ridge to some other
location on the project site would affect open space areas that
have been planned to protect the site‟s most environmentally
sensitive resources.
This proposed mitigation measure thus
could actually impact the environment more than the project
would as currently planned.
Nothing in CEQA requires an EIR to explain why certain
mitigation measures are infeasible.
Rather, the statute directs
agencies to propose feasible mitigation measures in an EIR.
Substantial evidence indicates the City has analyzed the
project‟s impacts on views, and has proposed feasible mitigation
measures to minimize those impacts.
That is sufficient for
CEQA.
B.
Impacts on traffic
Loomis claims the EIR is inadequate because it did not
analyze traffic impacts at two particular intersections in
Loomis, and because it did not analyze traffic impacts during
school travel times.
68
The City claims the EIR‟s analysis of impacts at 17
different intersections, including three in Loomis, and its use
of “PM peak hour” traffic analyses, when traffic is heavier than
in AM conditions, satisfy the demands of CEQA.
We, as did the
trial court, agree with the City.
“CEQA does not require a lead agency to conduct every
recommended test and perform all recommended research to
evaluate the impacts of a proposed project.
The fact that
additional studies might be helpful does not mean that they are
required.”
(Association of Irritated Residents v. County of
Madera (2003) 107 Cal.App.4th 1383, 1396.)
“CEQA does not
require a lead agency to conduct every test or perform all
research, study, and experimentation recommended or demanded by
commentors.”
(Guidelines, § 15204, subd. (a).)
Rather, CEQA requires an EIR to “be prepared with a
sufficient degree of analysis to provide decisionmakers with
information which enables them to make a decision which
intelligently takes account of environmental consequences.
An
evaluation of the environmental effects of a proposed project
need not be exhaustive, but the sufficiency of an EIR is to be
reviewed in the light of what is reasonably feasible.”
(Guidelines, § 15151.)
The EIR‟s analysis of traffic satisfied this standard.
The
RDEIR analyzed levels of service at 17 nearby intersections
during the PM (evening) peak hour under five different
scenarios:
the existing conditions, the existing conditions
plus the project conditions, the year 2025 projected conditions
69
under the current general plan if the project is not built, the
year 2025 projected conditions if the project is built, and the
year 2025 projected conditions under a new, proposed general
plan if the project is built.
hour counts for two reasons:
The analysis relied upon PM peak
the City has historically relied
upon PM peak hour counts, and PM conditions tend to have higher
traffic volumes than AM (morning) conditions.
The analysis
determined the project‟s impact on traffic under each of these
scenarios would be less than significant.
Loomis does not fault this analysis.
Rather, it claims the
City did not do enough analysis because it omitted two
additional Loomis intersections, King Road at Taylor Road, and
Horseshoe Bar Road at Interstate 80.
It also claims the City
erred by not analyzing the AM school time period.
In the FEIR, the City responded to Loomis‟s criticisms.
It
analyzed the percent changes in daily traffic volumes to the two
locations suggested by Loomis under three scenarios, and
determined the increase in volume to be as follows:
Scenario
King Road/Taylor Road
Horseshoe Bar Rd/I-80
Existing plus project
Less than 2%
Less than 2%
2025 current general
plan plus project
14%
Less than 2%
2025 proposed general
plan plus project
4%
Less than 2%
Based on this analysis, the City determined that changes in
traffic volumes at these two intersections would be small, and
70
thus the City did not perform a formal level of service
intersection analysis for them.
The City also explained its use of the PM peak period for
its analysis instead of Loomis‟s proposed “school time” period.
The PM peak hour is when the highest traffic volumes are on the
roadway system.
Also, there is no evidence that time periods
before or after school would be more critical than the PM peak
hour.
The EIR‟s analysis of traffic impacts thus satisfied CEQA.
By addressing Loomis‟s concerns in the FEIR, the EIR gave
decision makers sufficient information of the project‟s impacts
on traffic, in light of what was reasonably feasible to analyze.
CEQA required nothing more.
C.
Impacts on water supply
Loomis claims substantial evidence does not support the
EIR‟s conclusion that an adequate water supply will be available
for the project.
It faults the EIR for allegedly not
demonstrating the water supply is sufficiently guaranteed for
this project in the event the project is delayed and other
development projects use the available water first.
We conclude
the EIR‟s analysis is sufficient.
1.
Additional background information
The RDEIR explained that the City‟s water is provided by
the Placer County Water Agency (PCWA).
PCWA approved the City‟s
request to supply water to the project.
It determined it had an
adequate supply and sufficient infrastructure to meet the
71
project‟s demands as well as the anticipated demands for new
development in western Placer County for the next 20 years.
As of 2007, PCWA had 17,358 acre feet yearly (afy) of
uncommitted water to be used by new development in western
Placer County.
PCWA calculated this project at buildout would
require approximately 631 afy.
The RDEIR thus concluded the
project currently had a sufficient water supply.
However, the RDIER noted that because PCWS has a “firstcome, first-serve[d]” policy for serving new customers, a delay
in constructing the project could jeopardize the project‟s
access to the surplus water.
If that were to happen, certain
infrastructure projects already planned by PCWA would have to be
implemented to provide adequate water to the project.
PCWA
would determine the need for these improvements when real
parties in interest paid to be connected to the system.
If PCWA
determined it did not have adequate supply to service the
project at that time, the project would not proceed until such
time when the infrastructure improvements were made.
If PCWA
determined it had adequate supply for the project, it would
guarantee water to serve the site.
In response to comments about the RDEIR‟s water supply
analysis, the City in its Master Comments to the FEIR expanded
its discussion of water supply impacts.
Regarding the
possibility of PCWA not having sufficient supplies if the
project is delayed unexpectedly, the City explained that PCWA
has additional water rights to the American River which it is
currently negotiating to transfer to the Sacramento River.
72
If
the transfer occurs this additional water would be available to
service the project.
Specifically, PCWA has rights to an additional 35,000 afy
of water from the American River through the federal Central
Valley Project administered by the Bureau of Reclamation.
The
City anticipates this water being available by 2015 by means of
a unique contractual agreement.
Pursuant to an agreement signed
by numerous water purveyors in Northern California known as the
Water Forum Agreement, PCWA has applied to divert 35,000 afy
from the Sacramento River in lieu of taking the same amount of
water from the American River.
This diversion is already
undergoing environmental review under CEQA and its federal
counterpart.
The City claims a reasonable certainty that this water will
be available to it.
The diversion is based on actual rights the
City has to American River water, not so-called entitlements to
paper water; the diversion has the support of all Water Forum
Agreement signatories as it will have less environmental impact
than taking water from the American River; and the project has
been encouraged by federal legislation.
The City acknowledges the diversion faces regulatory
hurdles that could cause delays:
completion of environmental
review, approval of a contract between PCWA and the Bureau of
Reclamation, approval of a wetlands “fill” permit by the Army
Corps of Engineers under the federal Clean Water Act, and
consultations required under the federal Endangered Species Act.
However, the City and other agencies participating in the
73
diversion project have already taken steps to minimize impacts
the project may have on endangered species.
The FEIR reminds the reader that notwithstanding these
contingencies, PCWA has certified that it has sufficient water
supplies for this project and all other contemplated development
within its service area through the next 20 years barring any
unforeseen and unexpected delays in project development.
2.
Analysis
In Vineyard Area Citizens, supra, 40 Cal.4th 412, our
Supreme Court established four principles that govern an EIR‟s
analysis of water supply impacts.
First, “[d]ecision makers
must, under the law, be presented with sufficient facts to
„evaluate the pros and cons of supplying the amount of water
that the [project] will need.‟
[Citation.]”
(Id. at p. 431.)
Second, an EIR “evaluating a planed land use project must
assume that all phases of the project will eventually be built
and will need water, and must analyze, to the extent reasonably
possible, the impacts of providing water to the entire proposed
project.
[Citation.]”
(Vineyard Area Citizens, supra, 40
Cal.4th at p. 431.)
“Third, the future water supplies identified and analyzed
must bear a likelihood of actually proving available;
speculative sources and unrealistic allocations („paper water‟)
are insufficient bases for decisionmaking under CEQA.
[Citation.]
An EIR for a land use project must address the
impacts of likely future water sources, and the EIR‟s discussion
must include a reasoned analysis of the circumstances affecting
74
the likelihood of the water‟s availability.”
(Vineyard Area
Citizens, supra, 40 Cal.4th at p. 432, original italics.)
Fourth, “where, despite a full discussion, it is impossible
to confidently determine that anticipated future water sources
will be available, CEQA requires some discussion of possible
replacement sources or alternatives to use of the anticipated
water, and of the environmental consequences of those
contingencies.
[Citation.]”
(Vineyard Area Citizens, supra, 40
Cal.4th at p. 432)
Loomis targets the EIR‟s compliance with the Vineyard Area
Citizens’ third and fourth principles; the likelihood that
identified future water supplies will be able to provide the
needed water, and a discussion of possible replacement sources
if it is impossible to confidently determine the anticipated
water will be available.
Loomis claims the EIR‟s analysis fails
to verify PCWA water will be able to provide the needed water
due to PCWA‟s “first come, first serve[d]” policy, and that the
EIR‟s discussion of a possible replacement source, the
Sacramento River diversion water, is too uncertain a possibility
to be considered as a viable replacement source.
Our review convinces us the EIR satisfies the standards set
forth in Vineyard Area Citizens.
The EIR identifies future
water supplies sufficient to satisfy the project‟s needs that
have a likelihood of actually being available, it analyzes the
circumstances affecting the likelihood of the water‟s
availability, and it discusses possible replacement sources in
the event the primary source proves to be unavailable.
75
Pursuant to statutory mandates, PCWA certified to the City
in writing that it has sufficient water to meet the
development‟s needs, and, indeed, the needs of all other
contemplated development within PCWA‟s service area for the next
20 years.
“Government Code section 66473.7 generally requires a
city or county, before approving a subdivision map for a
residential development of more than 500 units, to obtain from
the applicable public water system a „written verification‟ that
adequate water supplies will be available for that project as
well as other existing and planned future uses for a projected
20-year period.
When the verification rests on supplies not yet
available to the water provider, it is to be based on firm
indications the water will be available in the future, including
written contracts for water rights, approved financing programs
for delivery facilities, and the regulatory approvals required
to construct infrastructure and deliver the water.
(d).)
(Id., subd.
The subdivision map may be approved only if the water
system verifies, or the city or county finds on substantial
evidence, that water supplies will be adequate.
(Id., subd.
(b); see Tepper, New Water Requirements for Large-Scale
Developments [Jan. 2005] 27 L.A. Law. [18,] 20.)”
(Vineyard
Area Citizens, supra, 40 Cal.4th at p. 433.)
In addition, “Water Code sections 10910 to 10912, enacted
in 1995 but substantially amended in 2001, apply more broadly to
any large land use project (not only residential developments)
and to approval of any such project subject to CEQA (not only to
subdivision map approvals).
(Wat. Code, §§ 10910, subd. (a),
76
10912, subds. (a), (b).)
They require the city or county
considering a project to obtain, at the outset of the CEQA
process, a water supply „assessment‟ from the applicable public
water system.
(Wat. Code, § 10910, subd. (b).)
The „water
supply assessment‟ is then to be included in any CEQA document
the city or county prepares for the project.
10911, subd. (b).)
(Wat. Code, §
With regard to existing supply entitlements
and rights, a water supply assessment must include assurances
such as written contracts, capital outlay programs and
regulatory approvals for facilities construction (paralleling
the assurances Gov. Code, § 66473.7, subd. (d) requires for
future water), but as to additional future supplies needed to
serve the project, the assessment need include only the public
water system‟s plans for acquiring the additional supplies,
including cost and time estimates and regulatory approvals the
system anticipates needing.
10911, subd. (a).)”
(Wat. Code, §§ 10910, subd. (d)(2),
(Vineyard Area Citizens, supra, 40 Cal.4th
at p. 433, original italics, fn. omitted.)
“Taken together, Water Code sections 10910 to 10912 and
Government Code section 66473.7 thus demand . . . that „water
supplies must be identified with more specificity at each step
as land use planning and water supply planning move forward from
general phases to more specific phases.‟
The plans and
estimates that Water Code section 10910 mandates for future
water supplies at the time of any approval subject to CEQA must,
under Government Code section 66473.7, be replaced by firm
assurances at the subdivision map approval stage.”
77
(Vineyard
Area Citizens, supra, 40 Cal.4th at pp. 433-434, original
italics.)
Loomis claims PCWA‟s written certification of sufficient
water supply for this project does not qualify as a firm
assurance because PCWA‟s “first come, first serve[d]” policy
leaves open the possibility of not having sufficient water
should this project be unexpectedly delayed.
However, the
Supreme Court stated that to pass muster under CEQA, the future
water supplies identified and analyzed “must bear a likelihood
of actually proving available.”
40 Cal.4th at p. 432.)
(Vineyard Area Citizens, supra,
Clearly, PCWA‟s written certification
that it currently has sufficient water for this project and all
other developments contemplated for the next 20 years satisfies
this test.
It has over 17,000 afy of unclaimed water, and this
project at full build-out will require only 631 afy, or
approximately four percent, of that water.
rests on supplies that are available.
likelihood here.
This verification
There is no mere
This evidence establishes a virtual certainty
the water will be available, far more than CEQA requires.
Also, because in this instance it was not “impossible to
confidently determine that anticipated future water sources will
be available,” the EIR was not required to satisfy Vineyard Area
Citizens’ fourth principle, that of including some discussion of
a possible replacement source.
that discussion.
Nevertheless, the EIR included
It explained PCWA would likely obtain another
35,000 afy of water from the Sacramento River, subject to
ongoing governmental approvals.
That discussion was also
78
adequate, as it related only to a viable future source that was
not likely needed to provide water to this project.
Thus, like
the assessment required under Water Code section 10910, the
EIR‟s analysis needed to include only PCWA‟s plans for acquiring
the additional water and the regulatory approvals it would need
to acquire the water.
This EIR included that discussion.
We thus conclude the EIR complied with CEQA‟s requirements
for analyzing water supply, and that substantial evidence
supports the EIR‟s and the City‟s determinations that the
project‟s impacts on water supply would not be significant.
DISPOSITION
The judgment is affirmed.
Costs on appeal are awarded to
the City and real parties in interest.
(Cal. Rules of Court,
rule 8.278(a).)
NICHOLSON
We concur:
HULL
, J.
ROBIE
, J.
79
, Acting P. J.
