San Dieguito Community Council v. County of San Diego CA4/1 (2015) · DecisionDepot
San Dieguito Community Council v. County of San Diego CA4/1
California Court of Appeal Dec 22, 2015 No. D067126Unpublished
Filed 12/22/15 San Dieguito Community Council v. County of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGUITO COMMUNITY D067126 COUNCIL, INC.,
Plaintiff and Appellant, (Super. Ct. No. 37-00066179-CU-WM- v. NC)
COUNTY OF SAN DIEGO,
Defendant and Respondent;
RANCHO CIELO ESTATES, LTD.,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Robert P.
Dahlquist, Judge. Affirmed.
Kevin K. Johnson, Jeanne L. MacKinnon and Heidi E. Brown for Plaintiff and
Appellant.
Sheppard, Mullin, Richter & Hampton, John E. Ponder, Karin Dougan Vogel and
Whitney Hodges for Defendant and Respondent and for Real Party in Interest and
Respondent.
This case arises from the seventh amendment (Amendment) to the Rancho Cielo
Specific Plan (Specific Plan) and the related addendum (Addendum) to the environmental
impact report (EIR) for the real estate development of Rancho Cielo Estates
(Development) in the San Dieguito community of San Diego County. Proposed by the
1984 SPA 84-05. This amendment added five additional country estate lots and
redesigned 10 other country estate lots — none of which affect the two parcels (H and
VC) or the water reclamation system at issue in the appeal. Along with this amendment,
the Board adopted a negative declaration.
1996 SPA 96-001. This amendment reduced certain residential lot sizes within the
country estates and relocated the fire station from the Village Center to the Neighborhood
Commercial Center. Along with this amendment, the Board approved an addendum to
the EIR and SEIR.
2001 SPA 98-001. This fourth amendment was approved primarily to respond to
changes resulting from the acquisition of a right-of-way for and the construction of a
4
pipeline by the Olivenhain Municipal Water District (OMWD) for its water storage
project, by which the OMWD connected several existing water storage reservoirs.3 A
related approval included adding two, deleting seven and relocating two country estate
lots on different parcels. Along with this amendment, the Board approved an addendum
to the 1981 EIR and the 1984 SEIR.
2002 SPA 00-006. This fifth amendment further considered OMWD's project and
OMWD's provision of water and sewer service for the Development, including the
construction of an OMWD pump station within in the Development by which wastewater
would be pumped to an offsite treatment plant. In response to OMWD's water storage
project, this amendment also allowed for the transfer of four lots from one side of a creek
to the other side. Along with this amendment, the Board approved an addendum to the
1981 EIR and the 1984 SEIR.
2003 SPA 00-003. This amendment transferred 147 acres, including 46 country
estate lots, and relocated a proposed sewer pump from the Specific Plan area to a newly
created area, the Cielo del Norte Specific Plan, outside the Development. The Board
approved the environmental effects of this amendment in an August 2003 EIR submitted
in support of the Cielo del Norte Specific Plan.4
3 OMWD's project is described as a system of reservoirs, water treatment plant, pipelines and a dam intended to enhance water delivery.
4 The 2003 EIR in support of the Cielo del Norte Specific Plan is not at issue in this appeal.
5
Thus, by 2003 the Specific Plan and the six SPA's (collectively, the Amended
Specific Plan) approved final maps creating parcels H and Village Center (parcel VC), as
well as construction of 528 residential units, including 42 village estates on parcel H.
Tens of millions of dollars of infrastructure had been completed, and approximately 200
houses had been built.
B. The Amendment and the Addendum
As relevant to this appeal, the 2013 Project proposed by the Amendment
(1) focused on parcel H, which had allowed for the development of 42 village estate
units, and parcel VC, which had allowed for the development of the Village Center; and
(2) reclassified the water reclamation facility to country estates and the reclaimed water
reservoir sites to open space for biological preservation. More specifically, the 2013
Project proposed reducing the residential units on parcel H from 42 to 24 (17 on parcel H
and seven transferred to parcel VC) and deletion of the water reclamation facility.
County staff explained (1) that the water reclamation system was no longer
necessary, because OMWD was already providing all the water and sewer services for
the Amended Specific Plan area, and (2) that the density of the overall Amended Specific
Plan would remain at the approved 0.27 dwelling units per acre. County staff also
conducted environmental review and advised that the 2013 Project would not cause any
new significant environmental impacts that were not previously considered and, as
appropriate, mitigated in the Amended Specific Plan.
In May 2013, by a vote of 8-0-1, the San Dieguito Community Planning Group
unanimously recommended approval of the 24 single-family homes and the elimination
6
of the water reclamation system. In July 2013, by a vote of 5-0-2, the County's planning
commission recommended approval of the zoning reclassifications required to effect the
2013 Project. In August 2013, by a vote of 5-0, the Board approved the 2013 Project and
adopted the Amendment and Addendum, along with two related tentative maps and two
related site plans.5
C. The Trial Court Proceedings
In September 2013, SDCC filed the underlying action against the County and
Rancho Cielo (together, Respondents). In a verified petition for writ of mandate and
complaint for declaratory and injunctive relief, as relevant to the issues on appeal SDCC
alleged that in the process of approving the 2013 Project — i.e., in adopting the
Amendment and Addendum — the County violated CEQA.6 The County and Rancho
Cielo filed their respective responses and answers to SDCC's petition/complaint.
5 In the formal notice approving the 2013 Project, the County described the 2013 Project as follows: "The proposed project includes five parcels, with a Specific Plan Amendment to the Rancho Cielo Specific Plan for the change in land use designations to four out of the five parcels: Three parcels changed from water reclamation to biological open space and one parcel changed from Village Center to Village Estates. Additionally, the project includes the subdivision of two parcels, which are proposed for development of 24 single family lots; 17 lots within Parcel H and seven lots within the Village Center Parcel, with a density transfer of seven lots from Parcel H. Zoning Reclassifications and site plans are also included to implement the Specific Plan Amendment."
6 To the extent SDCC alleged other claims in its petition/complaint, we do not reach them, because SDCC has not asserted error related to them in its opening brief. (Medrazo v. Honda of North Hollywood (2012) 205 Cal.App.4th 1, 14 [appellant forfeits claim by not raising meaningful analysis of claim in opening brief].)
7
Following full briefing based on a complete record of the administrative
proceedings, the trial court entertained oral argument and took the matter under
submission. In October 2014, the court issued a lengthy minute order, discussing and
ruling on the various issues raised in the briefing. As applicable to the issues on appeal,
the minute order provided as follows: (1) the court reviewed the 2013 Project under
section 21166 and the substantial evidence standard given the existing EIR, not
determining de novo whether the 2013 Project was a "new" project to be reviewed under
section 21151 and the fair argument standard;7 and (2) the administrative record
contained substantial evidence supporting the County's findings regarding water
reclamation, traffic, fire and reallocation of residential units.
In November 2014, the court entered judgment denying relief to SDCC. In
December 2014, SDCC timely appealed.
II.
DISCUSSION
In an appeal from judgment following a petition for writ of mandate in a CEQA
case, " '[o]ur task on appeal is "the same as the trial court's." [Citation.] Thus, we
conduct our review independent of the trial court's findings.' [Citation.] Accordingly, we
examine the [agency's] decision, not the trial court's." (Banker's Hill, Hillcrest, Park
West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249,
257 (Banker's Hill).)
7 We will discuss these statutes and standards in the Discussion, post.
8
SDCC raises the following issues on appeal: (1) whether the County was required
to review the 2013 Project under section 21151, rather than under section 21166;
(2) whether the County failed to analyze properly the deletion of previously approved
mitigation measures; (3) whether consideration of the 2013 Project required the County
to prepare an EIR or SEIR rather than an addendum; (4) whether the findings in the
Addendum are supported by substantial evidence in the administrative record; and
(5) whether the Addendum contains a significant error requiring court intervention.
Before analyzing these issues, we will first present a brief overview of CEQA and
establish the appropriate standard of review.
A. CEQA Law
The policy of the state of California is that "the long-term protection of the
environment . . . shall be the guiding criterion in public decisions." (§ 21001, subd. (d).)
To this end, " ' "[t]he overriding purpose of CEQA is to ensure that agencies regulating
activities that may affect the quality of the environment give primary consideration to
preventing environmental damage." ' " (Keep Our Mountains Quiet v. County of Santa
Clara (2015) 236 Cal.App.4th 714, 729.) In order to implement this policy and purpose,
CEQA and its Guidelines8 "have established a three-tiered process to ensure that public
8 Codified at title 14, chapter 3, of the California Code of Regulations (14 Cal. Code Regs. § 15000 et seq.), the Guidelines are regulations authorized by section 21083 and adopted by the Secretary of the Natural Resources Agency to implement CEQA. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, fn. 4.) When interpreting CEQA, " 'we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.' " (Ibid.) For 9
agencies inform their decisions with environmental considerations." (Davidon Homes v.
City of San Jose (1997) 54 Cal.App.4th 106, 112; see Guidelines, § 15002, subd. (k)
[describing three-tier process].)
The first tier " 'requir[es] that an agency conduct a preliminary review in order to
determine whether CEQA applies to a proposed activity.' " (Banker's Hill, supra, 139
Cal.App.4th at pp. 257-258; see Guidelines, § 15060.) Unless exempt under the
Guidelines, in which event " 'no further environmental review is necessary,' " the agency
proceeds to the second tier and "conducts an initial study to determine if the project may
have a significant effect on the environment."9 (Banker's Hill, at p. 258; see § 21080,
subd. (d); Guidelines, § 15063, subd. (a).) If the study concludes there will be no
significant effect, the agency issues a negative declaration; if there will be a significant
effect, the process advances to the third tier, and the agency prepares an EIR. (Banker's
Hill, at pp. 258-259; see Guidelines, § 15063, subd. (b).)
However, this three-tiered process is not required for every step taken during the
development of a project, even where the proposal may have an effect on the
convenience, when we cite to a section of the Guidelines, we will be referring to a section of title 14 of the California Code of Regulations (e.g., Guidelines § 15000, et seq.).
9 " 'Significant effect on the environment' means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant." (Guidelines, § 15382.)
10
environment. "Once a proper EIR has been prepared, no [SEIR] is required unless
(1) '[s]ubstantial changes' are proposed in the project, requiring 'major revisions' in the
EIR; (2) substantial changes arise in the circumstances of the project's undertaking,
requiring major revisions in the EIR; or (3) new information appears that was not known
or available at the time the EIR was certified. (§ 21166; see also Guidelines, § 15162;
[citation].) '[S]ection 21166 comes into play precisely because in-depth review has
already occurred, the time for challenging the sufficiency of the original EIR has long
since expired (§ 21167, subd. (c)), and the question is whether circumstances have
changed enough to justify repeating a substantial portion of the process.' " (Committee
for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 54-
55.)
Rather, where the proposed project requires "some changes or additions" to the
EIR, but none of the above-described three conditions in section 21166 has occurred, the
agency "shall prepare an addendum to a previously certified EIR." (Guidelines, § 15164,
subd. (a).) "An addendum need not be circulated for public review but can be included in
or attached to the final EIR or adopted negative declaration." (Id., subd. (c).) "The
decision-making body shall consider the addendum with the final EIR or adopted
negative declaration prior to making a decision on the project. [¶] . . . A brief
explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162
should be included in an addendum to an EIR, the lead agency's required findings on the
project, or elsewhere in the record. The explanation must be supported by substantial
evidence." (Id., subds. (d), (e).)
11
B. Standard of Review
Section 21168 provides in relevant part that, where a plaintiff/petitioner like
SDCC alleges noncompliance with CEQA in any action or proceeding to review a public
agency's determination "made as a result of a proceeding in which by law a hearing is
required to be given, [where] evidence is required to be taken and discretion in the
determination of facts is vested in a public agency, . . . [¶] . . . the court shall not exercise
its independent judgment on the evidence but shall only determine whether the act or
decision is supported by substantial evidence in the light of the whole record." (Italics
added.) In contrast, in such an action or proceeding, "other than an action or proceeding
under Section 21168, . . . the inquiry shall extend only to whether there was a prejudicial
abuse of discretion." (§ 21168.5, italics added.)
In distinguishing the two types of cases, our Supreme Court has explained,
establishes the standard of review in administrative mandamus cases." (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392,
fn. 5.) The present action is one of administrative mandamus, because the County
"conduct[ed] a hearing at which evidence was taken in a judicial (adjudicative) sense."
(Ibid.) Thus, pursuant to section 21166, we will apply the substantial evidence standard
of review.10
10 SDCC argues for a de novo standard of review of the threshold issue whether the 2013 Project was a "new" project not considered in the Specific Plan to be analyzed under section 21151, as opposed to a modification of the Specific Plan to be analyzed 12
In this context, "substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact," but does not include
"argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts that do not contribute
to, or are not caused by, physical impacts on the environment." (§ 21080, subd. (e); see
Guidelines, § 15384, subd. (a) [substantial evidence means "enough relevant information
and reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be reached"].) The
application of this standard of review is no different in CEQA actions than in other cases:
" 'In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.' "
(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [CEQA
action], quoting from Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429
[negligence action following collision of train and truck].)
We determine de novo whether the agency used the correct CEQA procedures.
(Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131 (Save Tara).)
under section 21166. We will elaborate on the application of the standard of review applied to this issue at part II.C.1., post.
13
C. Analysis of Issues on Appeal
1. Section 21166, Not Section 21151, Applies to the County's Review of the 2013 Project
SDCC argues that the 2013 Project was not a modification to an existing plan that
had already received environmental review, but rather an altogether new project under
CEQA, requiring the County to have conducted an initial determination whether the
project may have a significant effect on the environment under section 21151. In so
arguing, SDCC emphasizes the different review an agency must provide of a new project
under section 21151, as opposed to the review of an adjustment to an existing project
under section 21166.
Where a new project is presented (and not exempt or subject to a negative
declaration), section 21151 provides in part that "local agencies shall prepare, or cause to
be prepared by contract, and certify the completion of, an [EIR] on any project that they
intend to carry out or approve which may have a significant effect on the environment."
(Id., subd. (a), italics added.) For purposes of section 21151, "a public agency must
prepare an EIR whenever substantial evidence supports a fair argument that a proposed
project 'may have a significant effect on the environment' "; this is known as the "fair
argument" standard. (Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1123.) This is a " 'low threshold' " for the preparation
of an EIR, reflecting a preference to resolve doubts in favor of full environmental review.
(Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 282.)
14
In contrast, once an EIR has been certified, section 21166 expressly precludes a
subsequent or supplemental EIR absent changed circumstances or new information.11
Section 21166's "presumption against additional environmental review" (San Diego Navy
Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 928 (San
Diego Navy)) implements the legislative policy favoring "prompt resolution of challenges
to the decisions of public agencies regarding land use" (Citizens for a Megaplex-Free
Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 111 (Citizens)). Section 21166
applies a deferential standard, " 'because in-depth review has already occurred, [and] the
time for challenging the sufficiency of the original EIR has long since expired.' " (Moss
v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1050 (Moss).)
Respondents argue that SDCC forfeited this argument, because prior to this appeal
SDCC did not allege or argue that the County violated section 21151 by failing to
consider whether the 2013 Project was a new project. Respondents rely on
section 21177, subdivision (a) (to assert grounds for noncompliance with CEQA in
lawsuit, they must be presented to agency prior to agency determination) and Sea & Sage
Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 (Sea & Sage) (issues
not raised in trial court cannot be raised on appeal). Although SDCC did not present the
11 After preparation of an EIR for a project, the responsible agency is precluded from requiring a subsequent or supplemental EIR unless "[s]ubstantial changes are proposed in the project which will require major revisions of the [EIR]"; "[s]ubstantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]"; or "[n]ew information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available." (§ 21166.) This standard is repeated at Guidelines, section 15162.
15
identical argument by identifying the specific statutes at issue, given the record
Respondents will not be prejudiced by our consideration of SDCC's legal argument as to
the appropriate standard of review. In the initial proceedings SDCC argued to the County
that Rancho Cielo's proposal "may result in environmental impacts which have not been
analyzed as required by CEQA" — which, as we discussed ante, strongly suggests
consideration of section 21151. Further, in initiating the underlying action, SDCC
alleged as error the County's failure to prepare a new (i.e., not a supplemental) EIR.
Consistently, in the trial court briefing, SDCC expressly argued that the 2013 Project was
a new project to which section 21166 was inapplicable, citing authority that advocated for
application of section 21151. Finally, Respondents briefed the issue both in the trial
court and on appeal; notably, in the trial court, Respondents did not argue that SDCC
forfeited the issue, and the court ruled on the merits.
We agree with SDCC that we must first determine whether the proposed changes
are a "project" subject to initial review under CEQA. (See Save Tara, supra, 45 Cal.4th
at p. 131.) In this context, a project subject to CEQA is "[a]n activity directly undertaken
by any public agency" which "may cause either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the environment."
(§ 21065, subd. (a); see Guidelines, §§ 15002, subd. (d), 15378.) SDCC contends the
project is merely the 2013 Project, whereas Respondents contend the project is the entire
Amended Specific Plan. To assist us, the Guidelines advise that " '[p]roject' means the
whole of an action . . . ." (Guidelines, § 15378, subd. (a), italics added.)
16
The parties disagree as to the standard of review we are to apply in determining
whether the County properly analyzed the 2013 Project under section 21166, rather than
under section 21151. SDCC argues for a de novo standard, whereas Respondents
contend the substantial evidence standard applies. They are not the only ones who
disagree: "Courts have reached different conclusions about the appropriate level of
judicial scrutiny to be applied to an agency's determination about whether a project is
'new,' such that section 21151 applies, or whether it is a modification of a previously
reviewed project, such that section 21166 applies." (Moss, supra, 162 Cal.App.4th at
p. 1051.)
In Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 (Save Our
Neighborhood), the Third District held that this threshold issue is a question of law for
the court.12 (Save Our Neighborhood, at p. 1297.) A year later, in Mani Brothers Real
Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (Mani Brothers),
Division Two of the Second District disagreed with this aspect of Save Our
Neighborhood in cases in which there has been a previously certified EIR: "Treating the
issue as a question of law, as the court did in Save Our Neighborhood, inappropriately
undermines the deference due the agency in administrative matters. That principle of
12 Other decisions suggest the same conclusion, even if in dictum. (Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1503 (Lincoln Place) ["The question of what constitutes a 'project' for purposes of CEQA review is a question of law which we review de novo."]; Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 637; Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 984; Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 470.)
17
deference is otherwise honored by the substantial evidence test's resolution of any
' "reasonable doubts in favor of the administrative finding and decision." ' "13 (Mani
Brothers, supra, 153 Cal.App.4th at p. 1401.)14
For purposes of the present dispute, we agree with the authorities that review for
substantial evidence the agency's threshold decision to proceed under section 21166
rather than under section 21151. In particular, we agree with the logic and reasoning in
Mani Brothers. Initially, to consider as a question of law whether the proposed changes
are a new project or a modification to an approved project, as in Save Our Neighborhood,
13 Other decisions suggest the same conclusion, even if in dictum. (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 202 [substantial evidence test used to evaluate agency's decision to proceed under § 21166 rather than under § 21151]; Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 675 (Abatti); Moss, supra, 162 Cal.App.4th 1041, 1052, fn. 6, 1058; Citizens, supra, 149 Cal.App.4th at p. 110; American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 1083; Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 703; Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1018; A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1793; Stone v. Board of Supervisors (1988) 205 Cal.App.3d 927; Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1544 (Fund for Environmental Defense); Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1071 (Bowman).)
14 Under Evidence Code sections 452, subdivision (d)(1) and 459, we note that the California Supreme Court has granted review in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Jan. 15, 2014, S214061). That case includes the issue of the proper standard of review when a lead agency is presented with a proposed modification to a project and performs a subsequent environmental review and prepares an SEIR, a subsequent negative declaration, or an addendum and raises the question: Is the agency's decision reviewed under a substantial evidence standard of review (Mani Brothers, supra, 153 Cal.App.4th at p. 1401) or subject to an initial de novo determination whether the modification of the project constitutes a new project altogether (Save our Neighborhood, supra, 140 Cal.App.4th at p. 1297)? (<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id =2059337&doc_no=S214061> [as of Dec. 21, 2015].) 18
"inappropriately undermines the deference due the agency in administrative matters."
(Mani Brothers, supra, 153 Cal.App.4th at p. 1401.) Moreover, "decid[ing] as a matter
of law if the later project is a revision of a previously approved project or an entirely new
project, without consideration of the environmental impacts of the later project, violates
the legislative mandate that 'courts . . . shall not interpret this division or the state
guidelines . . . in a manner which imposes procedural or substantive requirements beyond
those explicitly stated in this division or in the state guidelines.' " (Ibid., quoting from
§ 21083.1.) Labeling a project " 'new' " or " 'modified' " based on size, nature or
character "imposes a new analytical factor beyond the framework of CEQA" —
particularly where (as here) there is a previously certified EIR — since such factors are
"meaningful only to the extent they affect the environmental impacts of a project." (Mani
Brothers, at p. 1401.)
We must now determine whether substantial evidence supports the County's
decision to proceed under section 21166 — where an SEIR may not be required, unless
"[s]ubstantial changes are proposed in the project which will require major revisions of
the previous EIR . . . due to the involvement of new significant, environmental effects or a
substantial increase in the severity of previously identified significant effects."
In applying the substantial evidence standard, we presume the County's decision is
supported by substantial evidence, and SDCC bears the burden of proving otherwise.
(Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.) As in any other
19
case being reviewed for substantial evidence, an appellant in a CEQA appeal may not
refer only to the evidence in support of the appellant's position (California Native Plant
Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 626); an appellant must
describe in its opening brief the evidence favorable to the agency, show why it is lacking,
and failing to do so is fatal to the challenge on appeal (Citizens, supra, 149 Cal.App.4th
at pp. 112-113). The reason for this is that "if the appellants fail to present us with all the
relevant evidence, then the appellants cannot carry their burden of showing the evidence
was insufficient to support the agency's decision because support for that decision may lie
in the evidence the appellants ignore." (State Water Resources Control Bd. Cases (2006)
136 Cal.App.4th 674, 749-750 (State Water).) Where an opening brief fails to recite and
discuss the record that supports the agency's decision, the appellant is deemed to have
forfeited the substantial evidence argument. (Id. at p. 749.)
Here, SDCC argues only for de novo review of this issue, not presenting (or
arguing against the substantiality of ) the evidence in support of the County's decision to
proceed under section 21166. In particular, SDCC did not set forth the evidence in
support of a finding that the 2013 Project was a modification of the Amended Specific
Plan as opposed to a new project altogether. By relying only on evidence in the record
that it contends will support a finding that the 2013 Project was a new project, SDCC has
forfeited consideration of whether the County erred in proceeding under section 21166.
In any event, although not required to do so (Citizens, supra, 149 Cal.App.4th at
p. 113), we have reviewed the record and are satisfied that it contains substantial
evidence that the "whole of the action" (Guidelines, § 15378, subd. (a)) is the Amended
20
Specific Plan and the 2013 Project merely modifies it; the 2013 Project is not an entirely
new project. Moreover, even if we review the issue de novo as suggested by SDCC and
Save Our Neighborhood, our analysis and conclusion are the same given Save Our
Neighborhood's description of when an addendum may and may not be used (i.e., when
the proposed activity is a new project): An addendum may be used where there is "only
one project that under[goes] changes after completion of the initial environmental
review," but may not used where "the project is replaced by another project that happens
to be similar in nature."15 (Save Our Neighborhood, supra, 140 Cal.App.4th at p. 1300,
italics added.)
Here, the Village Center, the development of residential units on parcel H, and the
water reclamation facility were all within the scope of the previously completed
environmental reviews for the Amended Specific Plan — i.e., one project covering 2,668
acres — at the time the County reviewed the 2013 Project. As indicated in the 1984
SEIR, the Amended Specific Plan had approved future development of the Village Center
15 In Save Our Neighborhood, the agency approved in 1997 the North Point Project, which called for the construction of a 106-unit motel, restaurants, lounge, gas station, convenience store and carwash on the property. (Save Our Neighborhood, supra, 140 Cal.App.4th at p. 1291.) The North Point Project was never constructed, and in 2004 a different developer submitted plans for the Gateway Project, which called for the construction of a 102-unit motel with convention facilities and a gas station with a convenience store and carwash. (Id. at pp. 1291-1292.) The court ruled that the agency erred by reviewing the proposal as a modification to an existing project (under § 21166) rather than as a new project (under § 21151) based on the de novo determination that the Gateway Project was "a new project" that merely had many of the same characteristics as an earlier never developed project for the same site. (Id. at p. 1297.) In contrast, using the language of Save Our Neighborhood, here we have "only one project that underwent changes after completion of the initial environmental review." (Id. at p. 1300.)
21
and the Neighborhood Commercial Center; between 1984 and 2013 the uses originally
planned for the Village Center were relocated either to the Neighborhood Commercial
Center or elsewhere in the Development; and the 2013 Project proposed deleting the
Village Center. Similarly, the 1984 SEIR had approved development of 42 residential
units on parcel H; over the years, the total number of units in the Development decreased,
and many were redesigned and relocated; and the 2013 Project further modified the
Development, reducing those 42 residential units to 24 and transferring seven to
parcel VC. Likewise, whereas the original 1981 EIR had allowed for the future
development and permitting of a water reclamation system to service the Development,
the 2013 Project reclassified the physical facility to country estates and the reservoir sites
to open space for biological preservation. These three changes do not involve
replacement of one project by another; all are part of only one project, the Amended
Specific Plan, after completion of its initial environmental review.
Thus, regardless whether we review the decision to proceed under section 21166
for substantial evidence or de novo, the County properly analyzed the 2013 Project under
section 21166, not under section 21151.16 The whole of the action is the entire
16 Because we conclude that the Board properly reviewed the 2013 Project under section 21166, we do not reach SDCC's various arguments as to the purported errors of the review under section 21151.
22
Development, as set forth in the Amended Specific Plan, and the 2013 Project merely
modified it; the 2013 Project was not an altogether new project.17
2. The Record Contains Substantial Evidence Supporting the Deletion of Certain Previously-adopted Mitigation Measures
SDCC argues that the use of the Addendum (as opposed to an SEIR) to deal with
the 2013 Project's modifications related to the water reclamation system and the Village
Center violated CEQA safeguards associated with implementation of earlier mitigation
measures. We disagree.
Initially, we accept SDCC's premise that both the water reclamation system and
the Village Center were included in the 1981 EIR as mitigation, or at least as partial
mitigation, factors.18 SDCC is further correct in relying on section 21081.6 as a
statutory directive to agencies to ensure that mitigation measures be implemented.
17 In a different section of its opening brief (toward the end), SDCC argues that because the 2013 Project is a new project, writ relief should be granted requiring the County to prepare an EIR, an SEIR or a negative declaration according to section 21151, subdivision (a). However, since the 2013 Project is not a new project, section 21151 and its requirements for documentation are not implicated.
18 In emphasizing the mitigating impacts of water reclamation in the original 1981 EIR, SDCC suggests that "since that time drought and water shortages have become even more acute." In support of that comment, SDCC asks us to take judicial notice of an executive order dated April 1, 2015, and an emergency regulation adopted May 5, 2015 — documents that SDCC contends demonstrate that water saving efforts are of statewide environmental concern. Those documents were not before either the Board at the time it approved the Amendment and Addendum or the superior court at the time it ruled on SDCC's complaint/petition. Accordingly, we deny SDCC's motion for judicial notice. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2 [reviewing courts do not take judicial notice of evidence not presented to the fact-finding tribunal "absent exceptional circumstances"].)
23
(Lincoln Place, supra, 130 Cal.App.4th at p. 1508.) Once mitigating conditions are
imposed by an EIR, however, the responsible agency is not precluded from modifying or
deleting them. (Ibid.; Napa Citizens for Honest Government v. Napa County Bd. of
Mitigation measures must be "feasible." (Guidelines, § 15126.4, subd. (a)(1).) In
this context, " '[f]easible' means capable of being accomplished in a successful manner
within a reasonable period of time, taking into account economic, environmental, social,
and technological factors." (§ 21061.1.) Correspondingly, "no public agency shall . . .
carry out a project for which an [EIR] has been certified" where "economic, legal, social,
technological, or other considerations . . . make infeasible the mitigation measures . . .
identified in the [EIR]." (§ 21081, subd. (a)(3), italics added.) Before eliminating a
previously-adopted mitigation measure, therefore, the responsible agency must first find
that it is "infeasible" or "ill-advised" according to Napa Citizens, supra, 91 Cal.App.4th
at page 359 (land use plan), or "impractical or unworkable" according to Lincoln Place,
supra, 130 Cal.App.4th at pages 1508-1509 (all CEQA projects). In Napa Citizens, for
example, the Court of Appeal agreed that prior mitigation conditions could be deleted,
because they were "infeasible" and "ill-advised" based on the substantial evidence
establishing (1) deleting a mitigation condition regarding traffic would result in "only a
minor contributing factor" to the otherwise adverse impact of the project; (2) the agency
25
lacked the funds to implement the previously-approved mitigation conditions; and (3) the
agency lacked control over effecting the conditions. (Napa Citizens, at p. 359.)
We will now turn to the record to determine whether substantial evidence supports
the deletion of mitigation measures related to the water reclamation facility and the
Village Center. Initially, we note that SDCC improperly focuses on why the two
mitigation measures remain feasible, rather than the substantiality of the evidence
supporting their deletion — potentially forfeiting consideration of the issue on appeal.
(State Water, supra, 136 Cal.App.4th at p. 749.) Nonetheless, we will review the
evidence in support of the Amendment and Addendum.
a. Water Reclamation System
In 1981, the original EIR noted that "the costs and energy usage of producing
reclaimed water can become excessive," concluding that any wastewater reclamation at
the Development should be "both satisfactory to the regulatory agencies and
economical." Over the years, the County considered the satisfaction of both the
regulators and the economics.
In 1984, the County's Environmental Review Board commented that "it remains
unclear whether the Regional Water Quality Control Board standards can be met,"
warning that any failures in the reclamation system "would degrade the local
groundwater and could imbalance the ecology of the San Dieguito or San Elijo Lagoons."
In the same report, the Department of Public Works (the then-proposed operator of the
Development's water reclamation facilities) expressed concerns that the potential water
26
reclamation facility "is too costly, will consume too much energy, and may not be
feasible."
By the time of the County's consideration of 2013 Project, the OMWD was
providing all necessary water and sewer services to the Development. This included
sufficient water for both " 'firewise landscaping' " and a fuel modification plan, the
purpose of which was to "mak[e] all proposed structures safe from future wildland
wildfires." (Italics omitted.)
In both its initial study and the Addendum itself, the County disclosed the deletion
of the water reclamation facility and explained its reasoning as follows: "The OMWD
serves the [Development] with water and sewer service and these reclamation facilities
are no longer required."
Based on the 1981 EIR's statement that such further analysis will be necessary
after the availability of plans and the application for permits, SDCC suggests that
additional environmental review of the water reclamation plant was necessary before the
water reclamation system could be deleted. We disagree. The 2013 Project did not
propose to develop the facility without environmental review; prior to performing this
environmental review, the 2013 Project substituted something else in place of the system
based on an analysis of infeasibility, and that is the decision we review for substantial
evidence on appeal. Likewise, we disagree with SDCC's suggestion that any time a
mitigation measure is deleted, the "unmitigated impact remains" or an EIR or SEIR is
necessarily required. Here, the 2013 Project proposed that alternatives already in effect
27
resulted in the lack of a need for the water reclamation plant; and that is the decision we
review for substantial evidence on appeal.
Based on the foregoing, the County reviewed the continuing need for the water
reclamation facility and the reason for deleting the facility; and the administrative record
contains substantial evidence supporting the change. (Napa Citizens, supra, 91
Cal.App.4th at p. 359; Sierra Club, supra, 231 Cal.App.4th at pp. 1167-1168.)
Accordingly, SDCC did not establish error related to the deletion of the water
reclamation facility.
b. Village Center
The 1981 EIR described two planned commercial centers: the Village Center "at
the top of the ridge" within the Development, and the Neighborhood Commercial Center
outside the gates of the western entrance. The Village Center was proposed to cover 10
acres, and its intended uses included a convenience market, contract postal station,
restaurant and association offices and recreational facilities. The Neighborhood
Commercial Center was intended to be occupied by a market, pharmacy, nursery and
leasable office space.
Initially, we reject Respondents' argument that the Village Center was not a
mitigation measure identified in the 1981 EIR. The record reference provided by
Respondents is found under the major heading of "TRAFFIC CIRCULATION,"
following the subheading "IMPACTS," and within the subheading "MITIGATION" —
where the EIR specifically mentions the Village Center as one aspect of the Development
28
that will serve as "partial mitigation to traffic impacts" by "reduc[ing] the number of trips
onto external roads."
The 1984 SEIR described a relocation of the Village Center and a redesign of both
the Village Center and the Neighborhood Commercial Center. The Village Center was
moved to the southwest and reduced from 10 acres to six acres; the Neighborhood
Commercial Center was expanded to cover use on both sides of the intersection outside
the gates for its 50,000 square feet of commercial space on 10-15 developable acres.
By the time of the County's consideration of the 2013 Project, the proposed
Village Center was potentially 5,000 square feet of commercial space, and 30,000 of the
50,000 square feet of commercial space in the Neighborhood Commercial Center within
the Amended Specific Plan were vacant. In short, the evidence was that there was "no
demand" for commercial development within the gated community. As one
commissioner summarized (and the County planning official confirmed), "what was
originally anticipated has actually turned out to not be needed and the market's driving
that decision."
In addition, the County staff report advised that the recreational and association
uses originally anticipated to be developed in the Village Center had already been
relocated and developed to the south — thereby avoiding any loss of such uses.
Accordingly, we are satisfied both that the County reviewed the continuing need
for the development of the Village Center and the reason for deleting it and that the
administrative record contains substantial evidence supporting the change. (Napa
29
Citizens, supra, 91 Cal.App.4th at p. 359; Sierra Club, supra, 231 Cal.App.4th at
pp. 1167-1168.)
SDCC argues that the 1981 EIR promoted the Village Center as one way of
reducing external trips onto roads adjacent to the Development, whereas the 2013 Project
deleted the Village Center without an updated traffic study. Absent such a study, SDCC
continues, development of the Village Center remains feasible. However, the fact that
the record may contain evidence potentially supporting a finding that development of the
Village Center is feasible is irrelevant to our role, which is limited to determination of the
sufficiency of the evidence in support of the finding actually made (Howard v. Owens
Corning (1999) 72 Cal.App.4th 621, 631 (Howard)) — namely, that the Village Center
was no longer necessary. Likewise, SDCC's characterization of the evidence related to
the lack of demand for commercial space as "conflicting information" is not persuasive.
"[T]he test is not the presence or absence of a substantial conflict in the evidence.
Rather, it is simply whether there is substantial evidence in favor of the respondent."
(Ibid.)
For these reasons, SDCC did not establish error related to the deletion of the
Village Center.
3. SDCC Did Not Meet Its Burden of Establishing Error in the County's Use of an Addendum Rather Than an SEIR
In this argument, SDCC accepts the County's use of section 21166 in evaluating
the 2013 Project, but contends that the County erred in preparing an addendum rather
than an SEIR. More specifically, SDCC argues that the 2013 Project's deletion of the
30
water reclamation facility and the Village Center are " 'substantial changes' " that " 'will
require major revisions' " of the 1981 EIR, thereby necessitating an SEIR under
section 21166. We disagree.
Initially, we incorporate our discussion at part II.C.1., ante, emphasizing that
where (as here) the agency is reviewing a potential modification to a project for which an
initial EIR has already been prepared, section 21166 provides a "statutory presumption
against additional environmental review." (San Diego Navy, supra, 185 Cal.App.4th at
p. 934.) " ' "The low threshold for requiring the preparation of an EIR in the first instance
is no longer applicable; instead, agencies are prohibited from requiring further
environmental review unless the stated conditions are met." ' " (Id. at p. 935.) This
" ' "shift in the applicable policy considerations" ' " under section 21166 " ' "comes into
play precisely because in-depth review has already occurred, . . . and the question is
whether circumstances have changed enough to justify repeating a substantial portion of
the process." ' " (Ibid.)
In order for the changes to trigger the requirement that an SEIR be prepared, they
must be "[s]ubstantial" and result in new or more severe "significant, environmental
effects." (Guidelines, § 15162, subd. (a)(1) & (2); see Fund for Environmental Defense,
supra, 204 Cal.App.3d at p. 1549 [addendum sufficient because changes did not raise
new adverse environmental effects].) Thus, proposed changes that are within the scope
of a previously approved project do not trigger preparation of an SEIR under
section 21166. (See Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th
1301, 1318 (Concerned Dublin Citizens) [where plan anticipated reallocation of
31
residential units within plan, shift of units from one location within the plan to another
within the plan did not require SEIR].)
In reviewing the agency's determination that an addendum is sufficient under
section 21166, "the test is whether the record as a whole contains substantial evidence to
support a determination that the changes in the project were not so 'substantial' as to
require 'major' modifications to the EIR." (Bowman, supra, 185 Cal.App.3d at p. 1075;
see Abatti, supra, 205 Cal.App.4th at p. 675 [substantial evidence standard of review for
decision that EIR not required]; § 21168.) In applying this standard, we " ' "are not
reviewing the record to determine whether it demonstrates a possibility of environmental
impact, but are viewing it in a light most favorable to the [agency's] decision in order to
determine whether substantial evidence supports the decision not to require additional
review." ' " (Abatti, at p. 675, italics added.)
Although no findings are required (Citizens, supra, 149 Cal.App.4th at p. 114), a
"brief explanation of the decision not to prepare a subsequent EIR pursuant to Section
15162 should be included in an addendum." (Guidelines, § 15164, subd. (e).) Here, in
the Addendum — under the heading "Environmental Review Update Checklist Form For
[P]rojects with Previously Approved Environmental Documents," following two pages of
background, a summary of the activities to be authorized by the Amendment (including a
description of how the 2013 Project differs from Amended Specific Plan) and the
disclosure that these activities would not result in "new" or "a substantial increase in
severity" of environmental effects — the County provided the following brief
explanation:
32
"No substantial changes are proposed in the [2013 P]roject and there are no substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous EIR . . . due to the involvement of significant new environmental effects or a substantial increase in the severity of previously identified significant effects. [Guidelines, § 15162, subd. (a)(1) & (2).] Also, there is no 'new information of substantial importance' as that term is used in CEQA Guidelines Section 15162[, subdivision ](a)(3). Therefore, the previously certified EIR is adequate upon completion of an ADDENDUM."
This explanation of "no substantial changes" resulting in new or more severe "significant
environmental effects" than in the 1981 EIR is sufficient and, as we explain, supported by
In support of the Seventh Amendment's proposal to reclassify the water
reclamation facility sites, County staff explained and provided evidence that the water
reclamation system was no longer necessary. The OMWD fully served the Development
by providing all necessary water and sewer services — including sufficient water for both
" 'firewise landscaping' " and a fuel modification plan, the purpose of which was to
"mak[e] all proposed structures safe from future wildland wildfires." (Italics omitted.)
SDCC is critical of the lack of evidence related to fire risks for which reclaimed
water was to be used. However, SDCC's record reference for the threat of wildfires and
the associated risks is to the 1981 EIR which confirms that this risk is not a
substantially changed circumstance for purposes of analyzing the Addendum under
Guidelines, section 15162, subdivision (a) and the issue on appeal. (Concerned Dublin
Citizens, supra, 214 Cal.App.4th at p. 1318 [proposed changes within the scope of a
33
previously approved project do not trigger preparation of an SEIR under § 21166].)
Further, SDCC fails to consider the Addendum, which contains a 105-page "Conceptual
Fire Protection Plan" that fully sets forth evidence of the fire risks in the Development
and how they would be dealt with — specifically referencing the sufficiency of water for
both the irrigation of fire breaks and for the safety of all proposed structures.
To the extent SDCC relies on community members' concerns about the availability
or cost of water, neither influences our analysis. At best these concerns are evidence that
merely supports a different finding; they do not establish a lack of substantial evidence in
support of the Addendum. (Howard, supra, 72 Cal.App.4th at p. 631.)
Accordingly, SDCC did not meet its burden of establishing a lack of substantial
evidence to support the 2013 Project's deletion (based on a lack of need) of the water
reclamation system.
b. Traffic
SDCC argues that the administrative record does not contain substantial evidence
to support the following statement in the Addendum: " 'The amount of development, and
therefore, trip generation and associated impacts on public roads are similar or less than
that previously analyzed and approved.' " We note that SDCC did not include the
sentence immediately prior to the quoted statement, by which the County limited its
34
finding to the intersection of Calle Ambiente and Del Dios Highway outside the gates of
the residential community.19
Initially, both the 1981 EIR and 1984 SEIR concluded that "traffic impacts were
less than significant, with mitigation," and by the time of the review of the 2013 Project,
all traffic-related mitigation measures identified in the 1981 EIR and 1984 SEIR had been
completed — thereby evidencing "less than significant" traffic impacts. Second, as
SDCC acknowledges, neither the Village Center nor 24 of the previously approved
residential units would be constructed under the 2013 Project. Third, the uses originally
proposed for the Village Center were relocated either to the expanded Neighborhood
Commercial Center or to other areas within the gated community. Finally, the impacts to
Del Dios Highway (outside the gates, near the Neighborhood Commercial Center) were
deemed to be the same as in the EIR and SEIR; i.e., although there were impacts, they
would not change based on the 2013 Project.
19 The County's presentation of the finding challenged by SDCC was limited to one intersection and provides in part: "The [2013 P]roject's traffic has been analyzed under the [1981 EIR]. [Two provisions of the 2013 Project propose 24] residential lots, respectively. The overall [Amended] Specific Plan anticipated the development of 42 V[illage ]E[state] units and a Village Commercial site, which would produce more traffic than currently proposed. This development does not change the expected impacts or mitigation measures anticipated for the total project operation, at the intersection of Calle Ambiente, with the Del Dios Highway, all of which were analyzed in the EIR. The amount of development, and therefore, trip generation and associated impacts on public roads are similar or less than that previously analyzed and approved. The original 1981 [EIR] analyzed 892 dwelling units and 20 acres of commercial development. That project generated 13,420 average daily trips (ADT). The analysis showed direct impacts to the Del Dios Highway . . . ." (Italics added.) 35
SDCC considers "simplistic" the County's evidence that, because the 2013 Project
proposed the deletion of the Village Center and a reduction of residential units from 42 to
24, less traffic will be generated. In so doing, SDCC does not attempt to explain how or
why this evidence is simplistic or insubstantial; nor does SDCC mention any other
evidence (let alone attempt to establish its insubstantiality) in support of the County's
finding. SDCC merely suggests that the County should have required an updated traffic
study.
For these reasons, SDCC did not meet its burden of establishing a lack of
substantial evidence to support the County's finding that the proposals in the Seventh
Amendment did not generate more substantial or severe impacts to traffic than were
analyzed in the EIR and SEIR.
c. Fire Safety
SDCC complains that, despite evidence from residents regarding the risks
associated with fire safety in the Development, the only condition for approval of the
Amendment was the installation of automation that would open all gates in the event of
an emergency. SDCC's criticism fails to account for the evidence presented in August
2013 in direct response to concerns that had been raised as to fire safety protection.
In writing, the County staff advised the Board:
"a. Background
"The [2013 P]roject is located within the Rancho Santa Fe Fire Protection District (District). The [D]evelopment was designed and built as a 'shelter- in-place' community, which means that the [Amended] Specific Plan is designed to provide a shelter for use during wildfire events and that construction is high quality and fire resistant. It allows residents to remain
36
within the [Amended] Specific Plan area, during a wildfire event if necessary. In addition to being a shelter in place community and having direct access to Del Dios Highway, secondary access is provided by access to Mount Israel Road to the east, Harmony Grove Road to the north, and Camino De Arriba to the east. These roads are currently paved and maintained, as well as accessible to all residents of the project.
"b. Fire Protection Plan
"[Rancho Cielo] prepared a Fire Protection Plan (FPP) that was approved by the both the County Fire Authority and the Rancho Santa Fe Fire Protection District, on January 2, 2013 and January 23, 2013, respectively. The FPP identifies that the project design does not exceed the required dead-end road length and the availability of secondary access points for use by residents in the case of an emergency event.
"To further alleviate the concerns related to emergency access, the tentative maps will each include a condition of approval to install an automatic gate opener at the main access guardhouse, at Calle Ambiente. This opener will automatically open all gates to the project during times of emergency; particularly, during wildfire events. This project complies with the County requirements for adequate fire protection." (Italics added.)
Consistently, at the August 2013 meeting, a County staff member orally summarized:
"The [2013 P]roject was reviewed by the County fire authority and local fire protection
district. The project complies with the County fire code and provides adequate defensible
space and access." (Italics added.) Finally, as established in part II.B.3.a., ante, the
record also contains substantial evidence of the sufficiency of water for the irrigation of
fire breaks and for the safety of all proposed structures.
Accordingly, SDCC did not meet its burden of establishing a lack of substantial
evidence to support the County's finding that the 2013 Project would not significantly
impact fire safety.
37
4. SDCC Did Not Meet Its Burden of Establishing Reversible Error Based on a Significant Error in the Addendum
SDCC contends that because the Addendum failed to accurately state the existing
zoning of parcel VC, the County's analysis of the 2013 Project's impacts is fatally flawed.
We disagree.
We accept for purposes of this argument (and Respondents do not challenge)
SDCC's representation that at all times prior to the approval of the Amendment and
Addendum in August 2013, parcel VC was zoned C-36 for commercial and civic uses. In
fact, as County staff properly disclosed to the Board at the August 7, 2013 meeting prior
to which the Board approved the Amendment and Addendum, at that time the current
plan and zone allowed only for commercial development on parcel VC — with
townhomes as a possible secondary use incidental to commercial development on
parcel VC.
Nonetheless, SDCC directs our attention to a 25-page, June 12, 2013
Environmental Review Update (which was part of the Addendum) that provides on
page 7 that the "current plan and zone allow for a total of 24 dwelling units across two
sites," one of which is parcel VC. (Italics added.) Inconsistently, earlier on page 4, the
update correctly reported that "parcel [VC] was previously designated and zoned for a
village commercial center." Thus, the italicized language was not accurate: The then-
current relevant plan and zone (1) designated parcel VC commercial and civic, and
(2) allowed for 42 residential units on parcel H; and the 2013 Project then under
consideration proposed reducing the number of residential units to 24 (17 on parcel H and
38
seven transferred to parcel VC). Based on this error, SDCC contends that the Board
approved a rezoning (of parcel VC to allow for the seven residential units) "without due
consideration of the internal and external traffic and public safety impacts."
Respondents argue that SDCC forfeited our consideration of this issue by raising it
for the first time on appeal. (§ 21177, subd. (a); Sea & Sage, supra, 34 Cal.3d at p. 417.)
In reply, SDCC refers us to portions of the administrative and trial court records where
challenges were made to the representations regarding the zoning of parcel VC. While
the exact argument there is not the argument SDCC has now crystallized on appeal, we
exercise our discretion to consider it on the merits.
We agree with Respondents that, given the entirety of the record, the error pointed
out by SDCC is not significant. Other than the June 12, 2013 Environmental Review
Update, SDCC has not directed us to any statement in or related to the Amended Specific
Plan or the Seventh Amendment — or anywhere else in the 34,808-page administrative
record — where the zoning on parcel VC was other than commercial and civic use
(C-36). Indeed, elsewhere in the Addendum and in the August 7, 2013 documentation
presented to the Board in support of the Seventh Amendment and Addendum —
including in a live power point presentation — the zoning for parcel VC was accurately
described as commercial and civic use under the C-36 designation.
To the extent SDCC suggests that a specific plan amendment is necessary to allow
residential development on (and thus a reallocation of residential units to) parcel VC, we
disagree. Parcel VC has been entitled to develop up to 40 dwelling units per acre since
the 1981 EIR. Moreover, the Seventh Amendment expressly provides for a rezoning of
39
parcel VC to residential units. Indeed, given that the Board approved the zoning change
for parcel VC at the same meeting as approving the Addendum, we are not persuaded that
the error on page 7 of the June 12, 2013 Environmental Review Update adversely
affected the process.
SDCC has provided only rhetoric, not legal authority, for the proposition that
allocation of units from one parcel to another, even where such allocation requires a
change in zoning, cannot be accomplished under CEQA by way of an addendum under
section 21166. In contrast, in Benton v. Board of Supervisors (1991) 226 Cal.App.3d
1467, the county properly approved a new use permit under section 21166 and an
addendum where new use required a rezone from agriculture uses to a commercial
winery. (Id. at pp. 1473 & fn. 3, 1476.)
In any event, SDCC has not attempted to demonstrate prejudice from the error,
and "there is no presumption that error is prejudicial." (§ 21005, subd. (b).)
" ' "Noncompliance with CEQA's information disclosure requirements is not per se
reversible; prejudice must be shown. " ' " (Rominger v. County of Colusa (2014) 229
Cal.App.4th 690, 709 [noncompliance with 30-day public review period not prejudicial].)
Thus, even if we assume significant error in the June 12, 2013 update, SDCC has not met
its burden of establishing reversible error.
Accordingly, the error on the June 12, 2013 Environmental Review Update is
insufficient to establish a significant error in the Addendum; and, regardless, SDCC has
not established prejudice that resulted from the error.
40
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
41
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment, holding that the County of San Diego correctly applied Public Resources Code section 21166 rather than section 21151 when reviewing the 2013 Project, as the project constituted a modification to an existing plan rather than a new project. The court further held that the County's decision to use an addendum to the previously certified environmental impact report was supported by substantial evidence.
Issues
Whether the County was required to review the 2013 Project under section 21151 rather than section 21166.
Whether the County failed to analyze properly the deletion of previously approved mitigation measures.
Whether consideration of the 2013 Project required the County to prepare an EIR or SEIR rather than an addendum.
Whether the findings in the Addendum are supported by substantial evidence in the administrative record.