Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000)

FRIENDS OF MAMMOTH et al., Plaintiffs and Appellants, v. TOWN OF MAMMOTH LAKES REDEVELOPMENT AGENCY et al., Defendants and Respondents, MAMMOTH MOUNTAIN SKI AREA et al., Interveners and Respondents.

[No. C031043. Third Dist. Aug. 21, 2000.]

FRIENDS OF MAMMOTH et al., Plaintiffs and Appellants, v. TOWN OF MAMMOTH LAKES et al., Defendants and Respondents, MAMMOTH MOUNTAIN SKI AREA et al., Interveners and Respondents.

[Modification of Opinion (82 Cal.App.4th 511) on denial of petition for rehearing.]

THE COURT. fn. † -

It is ordered that the published opinion filed herein on July 21, 2000, be modified as follows:

1. The first sentence of the first full paragraph of page 15 [82 Cal. App. 4th 528, advance report] is modified to read as follows: Once a project EIR has been certified by the lead agency, Public Resources Code section 21166 prohibits an agency from requiring additional environmental review in an EIR on that project unless . . . .

2. The second sentence of the second paragraph commencing on page 16 [82 Cal. App. 4th 529, advance report, lines 1-4] is modified to read as follows: If the subsequent project is actually the same project reviewed in the first-tier EIR, it cannot be subject to further environmental review in an [83 Cal. App. 4th 238b] EIR unless the requirements of Public Resources Code section 21166 are satisfied.

3. The first sentence of the second full paragraph commencing on page 21 [82 Cal. App. 4th 531, advance report, last par., lines 1-3] is modified to read as follows: Because of Public Resources Code section 21090 and Guidelines section 15180, further environmental review in an EIR of any development project implemented . . . .

4. The second sentence of the second full paragraph of page 23 [82 Cal. App. 4th 532, advance report, 4th par., lines 2-7] is modified to read as follows: As shown above, first-tier EIRs are not subject to the ban on subsequent EIRs imposed by Public Resources Code section 21166.

5. The text of the opinion commencing with the fourth paragraph to commence on page 23, and continuing through and including the first full paragraph of page 25 [82 Cal. App. 4th 533, advance report, pars. 1-4] is deleted and replaced by the following text: In its respondents' brief, the Town emphasized Guidelines section 15168, subdivision (c)(1), as requiring the Town to perform additional environmental review of the development projects for impacts not reviewed in the redevelopment plan EIR. We initially disagreed. On petition for rehearing, the Town now argues subdivision (c)(1) must be read together with subdivision (c)(2). Doing so does not further the Town's argument.

Subdivision (c) of Guidelines section 15168 concerns the performance of subsequent environmental review on activities implemented pursuant to a program EIR. The subsection reads in its entirety: "Use with Later Activities. Subsequent activities in the program must be examined in the light of the program EIR to determine whether an additional environmental document must be prepared. [¶] (1) If a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration. [¶] (2) If the agency finds that pursuant to [Guidelines] Section 15162, no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required."

The Town argues application of subdivision (c)(1) of Guidelines section 15168 would result in a new EIR only if one of the three conditions in section 21166 and Guidelines section 15162 occurred. If that is so, then this regulation is further evidence that significant environmental impacts discernable from information known now must be reviewed now in an EIR. [83 Cal. App. 4th 238c] Otherwise, section 21166 and Guidelines section 15168, subdivision (c)(2), will prohibit the Town from reviewing those impacts in a subsequent EIR.

6. The first full paragraph of page 29 [82 Cal. App. 4th 536, advance report, 2d par.] is modified to read as follows: By adopting the redevelopment plan, these projects are deemed approved for purposes of CEQA, and no additional EIRs analyzing any of the projects' significant impacts may be required for them unless the requirements of Public Resources Code section 21166 are met. The redevelopment plan EIR does not analyze any significant environmental impacts potentially caused by these projects individually as a result of their proposed use or location. If the Town develops these projects as approved and described in the redevelopment plan, Public Resources Code sections 21090 and 21166 will prohibit the Town from analyzing these projects' significant impacts arising from their use and location, since that information was known or could have been known when the redevelopment plan EIR was certified.

7. The second and third sentences of the second full paragraph commencing on page 29 [82 Cal. App. 4th 536, advance report, 3d, par., lines 4-10] are modified to read as follows: As already demonstrated, CEQA will prohibit additional EIRs analyzing the individual projects' significant effects unless the projects or their circumstances change significantly or significant new information which could not have been known when the redevelopment plan EIR was certified comes to light. This statement in the EIR thus offers no guarantee that potential significant impacts reasonably foreseeable now will be analyzed prior to actual development.

8. The second full paragraph of page 37 [82 Cal. App. 4th 541, advance report, 2d par.] is deleted and replaced by the following text: To claim the non-vacant parcels are developed for urban uses, the Town points us to a table in the Final Report compiled from the field survey cataloging and comparing the amounts of different types of uses in the Project Area. The Town also directs us to the General Plan Land Use Map depicting the land use designations assigned to properties in the Project Area, and a map prepared by plaintiffs at trial depicting in color the parcels the Town claimed were vacant and non-vacant. The approach is flawed because, as we discuss below, we cannot determine in this case whether parcels designated "institutional" by zoning or "resort" by the General Plan, for example, or even "non-vacant" by the Town staff are actually "lands developed for urban uses."

9. The second full paragraph of page 40 [82 Cal. App. 4th 542, advance report, last par.] is deleted, and the first full paragraph of page 40 [83 Cal. App. 4th 238d] [82 Cal. App. 4th 542, advance report, 4th par.] is modified to read as follows: Subdivision (c) of Health and Safety Code section 33320.1 reads: "For purposes of this section, a parcel of property as shown on the official maps of the county assessor is developed if that parcel is developed in a manner which is either consistent with zoning or is otherwise permitted under law." The Town reads subdivision (c) as deeming all of a parcel developed if only a portion of the parcel is developed. The statute's language does not support the Town's interpretation. Subdivision (c) is not concerned with the extent of development. It says nothing of deeming a partially developed parcel to be a fully developed parcel. Thus, subdivision (c) does not permit us to deem the undeveloped portions of a parcel to be "land . . . developed for urban uses." (Health & Saf. Code, § 33320.1, subd. (b)(1).)

10. The first full paragraph of page 56 [82 Cal. App. 4th 552, advance report, line 4] is modified by including the following as the paragraph's final sentence: Thus, not all of the Final Report's claims regarding the Housing Study can be verified.

There is no change in the judgment.

The petition for rehearing is denied.

Sims, J., and Nicholson, J., concurred.

FN †. Before Blease, Acting P.J., Sims, J., and Nicholson, J.