Downtown Fresno Coalition v. City of Fresno CA5 (2016) · DecisionDepot

Downtown Fresno Coalition v. City of Fresno CA5

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Jul 14, 2016 No. F070845Unpublished

Filed 7/14/16 Downtown Fresno Coalition v. City of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DOWNTOWN FRESNO COALITION, F070845 Plaintiff and Appellant, (Super. Ct. No. 14CECG00890) v.

CITY OF FRESNO, OPINION Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County. Dennis A. Peterson, Judge. Law Office of Sara Hedgpeth-Harris and Sara Hedgpeth-Harris; Chatten-Brown & Carstens, Amy C. Minteer and Michelle N. Black for Plaintiff and Appellant. Aleshire & Wynder, Anthony R. Taylor, John W. Fox, Mark W. Steres, and Lara R. Leitner; Douglas T. Sloan, City Attorney, Francine M. Kanne, Chief Assistant City Attorney, for Defendant and Respondent. -ooOoo-

INTRODUCTION This is an appeal from a judgment of the Superior Court of Fresno County denying the writ petition of appellant Downtown Fresno Coalition (Coalition). The Fulton Mall (Mall) in the heart of downtown Fresno is comprised of “ ‘city streets,’ or portions thereof, on which vehicular traffic is . . . restricted in whole or in part and which . . . [are] used exclusively or primarily for pedestrian travel.” (Sts. & Hy. Code, § 11006.) Respondent City of Fresno (City) seeks to “reconstruct [the] Mall as a complete street by reintroducing vehicle traffic lanes . . . .” Pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)1 and the Guidelines,2 City prepared a draft environmental impact report (EIR) for this proposed Fulton Mall Reconstruction Project (Project). Following circulation of the draft EIR for public review and completion of a final EIR, the Fresno City Council (City Council) certified the final EIR, made written findings for each significant environmental effect identified, and approved the Project on February 27, 2014. Coalition challenged these actions and petitioned for a writ of mandamus on March 28, 2014. After a hearing on the matter, the superior court denied the petition on October 21, 2014. On appeal, Coalition makes two principal arguments. First, City approved the Project before it conducted CEQA review. Second, the EIR was deficient. Specifically, Coalition alleges the report did not include (1) a legally adequate analysis of the Project’s

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“This Alternative would provide an increase in access to portions of the Mall; however, this increase could only be provided on the portions of the Mall that include streets. This Alternative could provide parking within those areas proposed with streets; however, [it] would not provide parking along the entire Fulton alignment. This Alternative would provide for multi-modal access options, but not along the entire Fulton alignment. The addition of the northernmost and southernmost blocks and the cross streets would provide increased visibility to a portion of the businesses, offices, and other amenities along the Fulton alignment. Although limited visibility is provided under this Alternative, it would not add on-street parking along the entire length of the Fulton . . . alignment. This Alternative could provide a greater public use of the Mall compared to existing conditions; however, the use of the Mall is expected to be less than the placement of a two-way, two-lane street along the entire length of the Fulton alignment and the cross streets. . . . [T]his Alternative is expected to reduce ground floor vacancies and increase annual gross retail sales within the Mall. However, this Alternative is not expected to result in as much of a reduction as Project Options 1 and 2 and as much of an increase in annual gross retail sales as Options 1 and 2 because Project Options 1 and 2 include[] the installation of a two-way, two[-]lane street as well as parking along the entire Fulton alignment. This Alternative would not maximize sustainable development and economic productivity in conjunction with other downtown redevelopment projects while complying with the requirement to receive federal transportation grant funds to minimize harm to the historic site resulting from the Project. This Alternative would provide greater public use of the Mall compared to existing conditions; however, the long-term public use of the Mall may not be greater than Project Options 1 and 2. The current federal grants secured by the City for the . . . Project would not qualify for use by this Alternative. Transportation projects throughout the City each year have been funded through federal, State, and local funds and no direct funds from the City[’s] . . . General Fund because the City does not allocate General Fund monies for transportation projects within the City. At this time, City staff is unaware of funding sources that are available to fund this Alternative, and there is no reasonable expectation to obtain funding for this Alternative.” The draft EIR was circulated for public review from November 27, 2013, to January 13, 2014. Thereafter, City received and responded to various comments and prepared a final EIR.

estoppel applies when “the issue sought to be precluded from relitigation [is] identical to that decided in a former proceeding”].) City claims the issues at stake are identical because the Project is the same, the alleged defects in the environmental investigation by Caltrans and by City are the same, and the standard of review of lead agency investigation is the same under NEPA and CEQA. We find the issues at stake are not identical. Here, Coalition filed the writ petition challenging lead agency City’s actions under CEQA and appealed from the trial court’s decision that City’s EIR complied with CEQA. The sole defendant in this case is City. In Bitters, the defendants were City, the FHWA, the administrator of the FHWA, Caltrans, the director of Caltrans, the DOT, and the director of the DOT. The federal district court acknowledged the defendants “undertook several environmental review processes to evaluate the development options for the Fulton Mall,” but the two at issue were “the NEPA and Section 4(f) processes.” (Bitters, supra, 2016 U.S.Dist. Lexis 4400, at p. 12.) Coalition did not bring any CEQA claims in the federal action and the federal district court did not evaluate or rule on the adequacy of City’s actions under CEQA. City argues, however, the federal district court’s ruling regarding NEPA and Section 4(f) compliance by Caltrans precludes us from determining whether City complied with CEQA because “CEQA was modeled after . . . NEPA, and courts routinely look to case law interpretations of NEPA as persuasive authority in CEQA cases.” No authority is cited, however, for the proposition a federal district court ruling on NEPA and Section 4(f) compliance precludes a state court ruling on CEQA compliance. Furthermore, Coalition points to two parallel federal and state court rulings regarding the sufficiency of environmental reviews of projects under NEPA and CEQA: (1) Laub v. U.S. Dept. of Interior (9th Cir. 2003) 342 F.3d 1080 and In re Bay-Delta etc. (2008) 43 Cal.4th 1143 [environmental evaluation of the CALFED Bay-Delta Program]; and (2) Center for Biol. Diver. v. Federal Highway Admin. (S.D.Cal. 2003) 290 F.Supp.2d 1175

v. City of Redlands (1999) 73 Cal.App.4th 215, 220.) The EIR “is the mechanism prescribed by CEQA to force informed decision making and to expose the decision making process to public scrutiny.” (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 910.) As “ ‘the heart of CEQA’ ” (Laurel Heights I, supra, 47 Cal.3d at p. 392, quoting Guidelines, § 15003, subd. (a)), the EIR “provides the public and responsible government agencies with detailed information on the potential environmental consequences of an agency’s proposed decision,” and “describes ways to minimize significant environmental effects, and suggests alternatives to the project, including the option of ‘no project’ ” (Mountain Lion, supra, 16 Cal.4th at p. 113, citing § 21061; accord, § 21002.1, subd. (a)). “ ‘CEQA does not, indeed cannot, guarantee that [governmental] decisions will always be those which favor environmental considerations.’ [Citation.] ‘If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of a public agency if the project is otherwise permissible under applicable laws and regulations.’ [Citation.] ‘CEQA recognizes that in determining whether and how a project should be approved, a public agency has an obligation to balance a variety of public objectives, including economic, environmental, and social factors . . . .’ [Citation.] While ‘CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits . . . of a proposed project against its unavoidable environmental risks when determining whether to approve the project,’ ‘the adverse environmental effects may be considered “acceptable” ’ ‘[i]f the specific economic, legal, social, technological, or other benefits . . . of a proposal project outweigh the unavoidable adverse environmental effects . . . .’ [Citation.]” (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150, 1174.)

III. Standard of review. Coalition emphasizes “City failed to proceed as required by law and failed to comply with CEQA’s information disclosure requirements. To the extent . . . City made a ‘factual’ finding that the EIR complied with CEQA’s informational disclosure requirements, [Coalition] maintains that the finding is based upon faulty interpretations of CEQA’s substantive and procedural mandates.” (Fn. omitted.) “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.’ ” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 (Vineyard), quoting § 21168.5.) “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.’ [Citations.]” (Vineyard, supra, at pp. 426-427.) “[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.” (Vineyard, supra, 40 Cal.4th at p. 435.) “[W]e determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation] . . . .” (Vineyard, supra, 40 Cal.4th at p. 435.) For instance, “[w]hen an agency fails to include information mandated by CEQA in the environmental analysis, the agency fails to proceed in a manner required by law.” (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 12 (San Diego Citizenry Group); cf. ibid. [“[W]here the agency includes the relevant information, but the [factual] adequacy of the information is disputed, the question is one of substantial evidence.”]; see Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1392 [“[T]he existence of substantial evidence supporting the agency’s ultimate decision on a disputed issue is not relevant when one is assessing a violation of the information disclosure provisions of CEQA.”].) “The determination of

$1 million to Laurel Place to “ ‘facilitate development of the project and begin[] the process of working with [1343 Laurel’s existing] tenants to explore relocation options.’ ” (Save Tara, supra, 45 Cal.4th at p. 124). Nearly half of this loan, i.e., $475,000, was to be advanced and used for environmental reports, governmental permits and fees, and other “predevelopment” items. (Id. at pp. 124, 125, 140.) In addition, tenant relocation was to be completed “before final project approval was given and the property conveyed . . . .” (Id. at p. 142, italics omitted.) Under the draft agreement, the city’s obligation to convey 1343 Laurel and lend money to Laurel Place was subject to several conditions, “among them that ‘[a]ll applicable requirements of CEQA . . . have been satisfied, as reasonably determined by the [c]ity [m]anager’ and that ‘[the] [d]eveloper shall have obtained all [e]ntitlements.’ ” (Save Tara, supra, 45 Cal.4th at p. 124, fn. omitted.) However, “[t]he city manager . . . could waive these conditions” (ibid.) and “[t]he predevelopment portion of the loan . . . was not subject to the CEQA compliance or entitlement conditions” (id. at pp. 124-125). The city would not approve a final EIR until October 2006 (Save Tara, supra, 45 Cal.4th at p. 127), nearly two and a half years after the city council authorized the draft agreement (id. at p. 124). On July 12, 2004, Save Tara, a group composed of city residents opposing the project, petitioned for a writ of mandate, alleging “th[e] [c]ity had violated CEQA by failing to prepare an EIR before the city council’s May 3[, 2004,] approval of the loan and draft agreement.” (Save Tara, supra, 45 Cal.4th at p. 125.) On August 9, 2004, the city and Laurel Place executed a revised agreement (ibid.), which (1) abrogated the city manager’s power to waive the CEQA compliance condition; (2) clarified “[the] [c]ity retained ‘complete discretion over . . . any actions necessary to comply with CEQA’ and . . . the agreement ‘imposes no duty on [the] [c]ity to approve . . . any documents prepared pursuant to CEQA’ ”; and (3) indicated Laurel Place “was to begin the [tenant relocation] process by hiring a relocation consultant within 30 days.” (Id. at p. 126,

italics omitted.) Save Tara’s petition was treated as amended to address both the May 3, 2004, draft agreement and the August 9, 2004, revised agreement. (Id. at p. 125, fn. 5.) The superior court denied the petition, reasoning an EIR “was [not] required before approving the May 3[, 2004,] draft agreement because ‘the [a]greement is expressly conditioned on compliance with CEQA . . . [and] does not limit the project alternatives or possible mitigation measures.’ ” (Save Tara, supra, 45 Cal.4th at p. 126.) “Thus, [the] [c]ity ‘has not given its final approval to convey the property at issue to [Laurel Place], nor has it given its final approval of the housing project itself.’ ” (Ibid.) The Second Appellate District reversed, countering (1) an EIR must be prepared “whenever lead agencies ‘propose to approve or carry out’ a project with potential significant effects” and “ ‘[cannot] be delayed until a “final” decision has been made’ ”; and (2) “conditioning a development agreement on CEQA compliance is insufficient because the EIR review process ‘is intended to be part of the decisionmaking process itself, and not an examination, after the decision has been made, of the possible environmental consequences of the decision.’ ” (Ibid., italics omitted.) The appellate court opined: “Any question as to whether a particular point in the development process is too early for preparation of an EIR ‘is resolved by the pragmatic inquiry whether there is enough information about the project to permit a meaningful environmental assessment. If the answer is yes, the EIR review process must be initiated.’ ” (Ibid.) Because “the project was well enough defined” “[b]efore May 3, 2004,” “[the] [c]ity should have performed” “meaningful environmental analysis.” (Ibid.) On appeal, the Supreme Court declined to endorse either the superior court’s “ ‘final approval’ ” standard or the Second Appellate District’s “well enough defined” touchstone. It explained:

is relevant but not determinative.” (Save Tara, supra, 45 Cal.4th at pp. 138-139.) Applying the aforementioned balancing test, the Supreme Court concluded the authorization of the May 3, 2004, draft agreement and the execution of the August 9, 2004, revised agreement constituted an approval that should have been prefaced by an EIR. (Save Tara, supra, 45 Cal.4th at pp. 121-122, 140.) The high court pointed to the contractual language, which (1) “forthrightly stated the[] purpose was to ‘cause the reuse and redevelopment’ of 1343 Laurel in accordance with the project” (id. at p. 140); (2) advanced nearly half of a $1 million loan to Laurel Place without conditioning the outlay on CEQA compliance, meaning the city risked wasting $475,000 “unless [it] gave final approval to the project in some form” (Save Tara, supra, at p. 140); and (3) specified the relocation of 1343 Laurel’s preexisting tenants would be completed “before final project approval was given and the property conveyed to Laurel Place” (id. at p. 142). In particular, the Supreme Court considered tenant relocation “a significant step in [the] redevelopment project’s progress” “likely to be irreversible” and found the city’s “willingness to begin that process as soon as the conditional development agreement was executed, and to complete it before certifying an EIR and finally approving the project, tends strongly to show th[e] [c]ity’s commitment to the 1343 Laurel project was not contingent on review of an EIR.” (Ibid.) The high court also examined the rest of the administrative record and found indicia of the city’s commitment predating the authorization of the May 3, 2004, draft agreement: (1) the city manager facilitated Laurel Place’s 2003 HUD grant application by informing the federal agency in a June 10, 2003, letter that the city “ ‘has approved the sale of the property’ and ‘will commit’ up to $1 million in financial aid” (Save Tara, supra, 45 Cal.4th at pp. 122-123, 141); (2) shortly after Laurel Place received a $4.2 million HUD grant in late 2003, the mayor and the city’s newsletter publicly announced the funding was earmarked for the construction of affordable senior housing

In the instant case, Coalition claims City “ ‘as a practical matter . . . committed itself to the [P]roject . . . so as to effectively preclude’ any full or partial restoration alternative” “due to the constraints of federal funding,” namely those of the TIGER grant. Coalition adds “City’s actions to secure the grant funding effectively precluded a project formulation that featured the full or partial restoration of the . . . Mall.” To the extent Coalition suggests a lead agency’s pursuit and procurement of funding for a proposed project necessarily constitutes an approval that was “required under [CEQA] to have been preceded by preparation of an EIR” (Save Tara, supra, 45 Cal.4th at p. 122; see id. at p. 130), we disagree. As previously mentioned, CEQA “contains a ‘substantive mandate’ requiring public agencies to refrain from approving projects with significant environmental effects if ‘there are feasible alternatives or mitigation measures’ that can substantially lessen or avoid those effects. [Citations.]” (County of San Diego v. Grossmont-Cuyamaca Community College Dist., supra, 141 Cal.App.4th at p. 98, some italics omitted.) “ ‘Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” (Guidelines, § 15364, italics added; accord, §§ 21061.1, 21081, subd. (a)(3); Guidelines, §§ 15126.6, subd. (f)(1), 15131, subd. (c); see Concerned Citizens of South Central L.A., supra, 24 Cal.App.4th at p. 841 [“[CEQA] does not demand what is not realistically possible, given the limitation of time, energy[,] and funds.” (italics added)].) Given the availability of funding is clearly relevant to the question of economic feasibility, i.e., whether the difference between the cost of a proposed project and the cost of an alternative is “ ‘so great that a reasonably prudent [person] would not proceed with the [alternative]’ ” (Sustainability, Parks, Recycling & Wildlife Legal Defense Fund v. San Francisco Bay

separate phases [i.e., Phases I and II] . . . .” (Irvine, supra, at p. 852.) During Phase I, counties were “allowed . . . to apply for a portion of approximately $750 million.” (Ibid.) During Phase II, counties were “allowed . . . to apply for a portion of an additional $470 million,” provided they “reached certain benchmarks under Phase I.” (Ibid.) In 2011, the Legislature amended Phase II’s funding provisions by “increas[ing] the amount of funds available . . . to nearly $603 million” and “eliminat[ing] [the] requirement that counties reach various benchmarks before receiving state funds.” (Ibid.) The county completed an application for $100 million in Phase II state funds, which required a statement of need, a description of the proposed expansion, and budget, construction and operation plans. (Irvine, supra, 221 Cal.App.4th at pp. 853, 861.) On December 6, 2011, well before the environmental impacts of the proposed project were assessed, the county’s board of supervisors authorized the execution and submission of the Phase II application. (Id. at p. 853.) The city petitioned for a writ of mandate, claiming the board’s action constituted an approval under CEQA and should have been preceded by CEQA. (Irvine, supra, at p. 853.) The superior court denied the petition. (Ibid.) On appeal, the Fourth Appellate District applied Save Tara’s “ ‘intermediate position’ . . . examin[ing] the totality of the circumstances and the practical effect of the public agency’s action on its ability and willingness to modify or reject the proposed project” (Irvine, supra, 221 Cal.App.4th at p. 857) and concluded “[n]othing in the [c]ounty’s [Phase II] application, or the state’s later conditional award to the [c]ounty, committed the [c]ounty to the Musick Facility expansion in a manner that effectively precluded the [c]ounty from considering any project alternatives or mitigation measures that CEQA otherwise required” (id. at p. 863). First, “[t]he state’s Request for Applications made clear the [c]ounty would receive only a ‘conditional award’ if the state approved the [c]ounty’s application” (id. at p. 861), meaning the county’s Phase II application “was merely a preliminary step that, if approved by the state, would authorize

the [c]ounty and the state to explore and evaluate the possibility of expanding the Musick Facility” “using state funds” (id. at pp. 861, 863; see id. at pp. 862-863). Second, “the [c]ounty, not the state, is designated as the lead agency responsible for complying with CEQA” (id. at p. 861) and “therefore [retains] . . . discretion to determine whether and how to mitigate any significant environmental impacts associated with the Musick Facility expansion and which alternatives, if any, to consider or adopt during the CEQA process” (ibid.). Third, “[t]he state did not require any form of CEQA documentation as part of the [c]ounty’s Phase II [a]pplication” (id. at p. 862) and “the state’s tentative project schedule . . . does not require the [c]ounty to provide documentation of CEQA compliance until approximately one year after receiving its conditional award” (ibid.). These facts outweighed those showing (1) the board made certain requisite assurances to the state in its resolution authorizing the execution and submission of the Phase II application (id. at pp. 863-864); (2) the county dedicated “substantial” “human and financial resources to developing the . . . expansion plan and preparing the Phase II [a]pplication” (id. at pp. 864-865); and (3) the Phase II application provided a “high level of detail . . . regarding its . . . Musick Facility expansion plan” (id. at p. 865). In view of Save Tara and Irvine, we conclude City’s pursuit and procurement of federal funding did not significantly further the Project in a manner that forecloses meaningful CEQA review. Like the Phase II funds in Irvine, the TIGER grant awarded to City in September 2013 was conditional. The grant would not be obligated by DOT until City established the Project would comply with all local, state, and federal requirements by June 30, 2014, including CEQA, signifying the money could be returned if the Project fell through.45 Like the county in Irvine, City was not required to submit CEQA documentation or otherwise finish environmental review before it applied for and received the TIGER grant. In fact, City had nearly 10 months following receipt of the

Downtown Fresno Coalition v. City of Fresno CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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