Alliance for the Protection of the Auburn Community Environment v. County of Placer CA3

Filed 8/31/15 Alliance for the Protection of the Auburn Community Environment v. County of Placer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

ALLIANCE FOR THE PROTECTION OF THE C077308 AUBURN COMMUNITY ENVIRONMENT etc., et al., (Super. Ct. No. SCV0034435)

Plaintiffs and Appellants,

v.

COUNTY OF PLACER,

Defendant and Respondent;

WALMART STORES, INC.,

Real Party in Interest and Respondent.

After losing its first challenge to the adequacy of the environmental review of a proposed project to build a retail center, including a Walmart store, and before County of Placer (County) undertook any further discretionary approvals, the Alliance for the Protection of the Auburn Community Environment (APACE) filed a petition for a writ of mandamus alleging the County violated the California Environmental Quality Act

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(CEQA; Pub. Resources Code, § 21000 et seq.) by failing to prepare a subsequent environmental impact report (EIR) in light of “new information” about soil contamination on the project site. The trial court sustained the County and Walmart Stores, Inc.’s (Walmart) demurrer without leave to amend. We affirm the judgment of dismissal because plaintiff alleges on the face of the complaint that the County has not granted a discretionary approval, by issuing a building permit or any other approval, and “[i]n the absence of such discretionary approval, the agency has no jurisdiction to prepare a subsequent or supplemental EIR.” (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 935 (San Diego); Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans).) FACTUAL AND PROCEDURAL BACKGROUND In September 2010 the County certified the final EIR for the development of a 155,000-square-foot building. Three days after the 30-day statute of limitations had run, APACE filed a petition for a writ of mandate alleging various CEQA violations. The trial court sustained the demurrer of the County and real party in interest Bohemia Properties, LLC, without leave to amend, and we affirmed the judgment of dismissal. (Alliance for Protection of Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25, 28 (Alliance).) APACE’s second petition for a writ of mandate alleges that newly discovered information about elevated levels of dioxins and furans in the ground soil rendered the initial environmental review obsolete and the dangers to health unaddressed in both the draft EIR and the final EIR. The petition further alleges that on December 10, 2013, APACE formally requested the County to prepare a subsequent EIR to consider the new information, and on December 27, 2013, Walmart submitted building plans and building permit applications, as well as related permits. APACE alleges “[t]hese plans and permit applications have yet to be approved.”