Tiburon Open Space Committee v. County of Marin (2022) · DecisionDepot

Tiburon Open Space Committee v. County of Marin

Name: California Superior Court Tentative Rulings
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California Court of Appeal May 12, 2022 No. A159860Published

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Holding. The County did not abdicate its governmental authority by complying with a binding federal stipulated judgment, as the judgment did not require the County to ignore the California Environmental Quality Act (CEQA).

Issues

Whether the County violated the principle that governmental powers are inalienable by complying with a stipulated judgment requiring the approval of a development project.
Whether the County's compliance with the stipulated judgment constituted an illegal agreement to bypass CEQA requirements.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is axiomatic that governmental powers are indefeasible and inalienable. They cannot be surrendered, suspended, contracted away, waived, or otherwise divested.”

Filed 5/12/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

TIBURON OPEN SPACE COMMITTEE et al., Plaintiffs and Appellants, A159860

v. (Marin County Super. COUNTY OF MARIN, Ct. No. CIV1704069) Defendant and Respondent; THE MARTHA COMPANY, Real Party in Interest and Respondent; TOWN OF TIBURON, Intervener and Appellant.

The Martha Company (Martha) owns the largest undeveloped parcel of real property in the vicinity of the Town of Tiburon, 110 acres on top of a mountain, overlooking much of the town and commanding a stunning view of San Francisco Bay. One county supervisor described the site as “the last remaining undeveloped ridgeline on the Tiburon peninsula,” and, as such, “it’s treasured by residents and visitors.” Another supervisor called it “amazing,” “unique,” and “an absolute treasure,” while a third termed it a “jewel.”

For decades, Martha has tried to get official approval from the County of Marin to develop the property. Local opposition has been intense and unrelenting. One manifestation of that opposition has been periodic bouts of litigation in federal district court, starting in 1975, between Martha and the County. The litigation produced two stipulated judgments, one in 1976, the other in 2007. The most significant aspect was that the County twice solemnly—and publicly—agreed to approve Martha building no fewer than 43 units on the property. Approval for Martha finally came in October 2017—12 years after its latest application for permission to develop the property—when the County certified an environmental impact report and conditionally approved Martha’s master plan to construct 43 single-family residences. The County took this action in the belief it was compelled by the stipulated judgments, particularly the 2007 one. It is axiomatic that governmental powers are indefeasible and inalienable. They cannot be surrendered, suspended, contracted away, waived, or otherwise divested. In short, government cannot bind itself not to govern by exercising its rightful powers, nor can it bind the hands of its successors. The primary issue here, advanced by the Town and a number of interested Tiburon residents, is whether the County violated this principle by complying with an ostensibly final judgment. The allegation is that the County in effect agreed it would not follow or enforce state law, specifically, the California Environmental Quality Act (CEQA), to prevent development of an anticipated project by the other party to the litigation. We conclude that the County did not abdicate its authority or otherwise

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7 During this period, Martha went to district court for a third time. In a 2018 order, the district court summarized what happened: “[O]n May 25, 2016, Martha filed a Motion to Enforce and Require Marin County’s Compliance with Judgments and, alternatively, for Appointment of a Special Master (‘Prior Motion to Enforce’). In that motion, Martha accused the County of violating the Stipulated Judgments and requested that the Court set new timelines and procedures by which the County of Marin must take final action on Martha’s development application. Alternatively, Martha sought appointment of a special master to oversee the completion of Martha’s ‘entitlement process’ and an order ‘requiring the County, including any third party in active concert with the County, to cease and desist from taking actions inconsistent with or that otherwise undermine the terms of the two judgments.’ [¶] The Magistrate held a hearing on the Prior Motion to Enforce. The parties stipulated to deadlines for Martha to submit revised plans and for the County to process those plans up to a final decision on the EIR. As a result, the Magistrate recommended denying the motion without prejudice, and authorizing her [the Magistrate] to review the parties’ anticipated status reports. The Court accepted the Magistrate’s recommendations.” (Record citations omitted.) 8 When the Board ultimately approved the project, among the “Findings Pursuant to the California Environmental Quality Act” was language describing how the project was still at a very preliminary stage: “The Master Plan application proposes to create 43 residential lots for development of single-family homes. The applicant is not proposing to construct any homes at this time, but is requesting approval of a series of design guidelines and standards, including minimum house sizes (square footage) for each lot, that would regulate future home construction on the property. . . . The applicant proposes to construct roads and utilities to serve each of the 43 residential lots. The application also includes a proposal to construct a temporary construction access road that would be used for all phases of project construction, including future home construction.” “Applicant[’s] proposed grading is intended to prepare the project site for residential development by installing roadways and utilities and repairing landslides and unstable areas. . . . The applicant proposes to improve or 12

adopted, or can and should be adopted, by that agency; or (3) specific eco- nomic, legal, social, technological, or other considerations make the mitiga- tion measures or alternatives identified in the EIR infeasible, and specific overriding economic, legal, social, technological, or other benefits outweigh the significant environmental effects. (§§ 21081, 21081.5; Guidelines, § 15091, subds. (a), (b).) A finding that specific overriding project benefits outweigh the significant environmental effects (§ 21091, subd. (b)) is known as a statement of overriding considerations. (Guidelines, § 15093.) [¶] . . . [¶] “Thus, a public agency is not required to favor environmental protec- tion over other considerations, but it must disclose and carefully consider the environmental consequences of its actions, mitigate adverse environmental effects if feasible, explain the reasons for its actions, and afford the public and other affected agencies an opportunity to participate meaningfully in the environmental review process. The purpose of these requirements is to en- sure that public officials and the public are aware of the environmental con- sequences of decisions before they are made.” (Federation of Hillside & Can- yon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1197−1198, fns. omitted.) Too much should not be expected of an EIR. It is not to have the ex- haustive scope of a scientific textbook. “An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among ex- perts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not

for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.) Much of what goes into an EIR is left to the discretion of the agency preparing it. The leading treatise summarizes: “The lead agency has discretion to design the EIR and need not conduct every recommended test or perform all required research. [Citations.] An EIR is not required to address all of the variations of the issues presented. [Citation.] An analysis of every permutation of the data is not required.” (Kostka & Zischke, Practice Under the California Environmental Quality Act (2d ed. 2022) § 11.28, pp. 11-19−11- 20; see Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 415 (Laurel Heights) [“A project opponent . . . can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR. That further study . . . might be helpful does not make it necessary”].) “EIRs shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can rapidly understand the documents.” (Guidelines, § 15140.) “Placement of highly technical and spe- cialized analysis and data in the body of an EIR should be avoided.” (Guide- lines, § 15147.) “Drafting an EIR or preparing a negative declaration neces- sarily involves some degree of forecasting. While foreseeing the unforeseea- ble is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.” (Guidelines, § 15144.) The judicial attitude to EIRs is deferential. “A court’s task is not to . . . determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor [the] scientific expertise to engage in such analysis . . . .” (Lau- rel Heights, supra, 47 Cal.3d 376, 393.) It follows that courts “do not require

balance the proposal’s benefit against its environmental cost, consider mitiga- tion measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance.’ [Citation.] A project description that gives conflicting signals to decision makers and the public about the na- ture of the project is fundamentally inadequate and misleading. [Citation.] Further, ‘[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input.’ [Citation.] ‘Whether an EIR cor- rectly describes a project is a question of law, subject to de novo review.’ ” (South of Market Community Action Network v. City and County of San Fran- cisco (2019) 33 Cal.App.5th 321, 332.) The private plaintiffs assert that the EIR’s project description was “un- duly narrow” and this “caused the County to act inconsistently with CEQA and other state law.” Citing North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, the plaintiffs reason: “As in North Coast Rivers Alli- ance . . . , the County’s unlawfully-truncated environmental review process began at its very inception—with an impermissible and ‘artificially narrow’ Project description in the DEIR [Draft EIR]. According to the County’s find- ings the purpose of the EIR was to conduct an ‘analysis of the 1976 Court Judgment that 43 minimum half-acre lots be approved on the subject prop- erty.’ Thus, the opening lines of the DEIR stated that [Martha’s] land use ap- plication was filed ‘in reliance’ on the stipulated judgments, ‘which deter- mined that the development of the project site with a minimum of 43 single- family residential units on minimum one-half acre lots would be consistent with the goals of the Marin Countywide Plan.’ . . . [¶] That artificially nar- row Project description[] caused the County to act inconsistently with state law by refusing to exercise its discretion and police powers and failing to com- ply with CEQA.”

28 This silence has considerable significance. The leading treatise on CEQA summarizes: “An EIR must describe feasible measures that could minimize the project’s significant adverse impacts. [Citation.] An EIR may decline to propose a mitigation measure that would not effectively address a significant impact. [Citation.] An EIR also need not identify and discuss mitigation measures that are infeasible. ‘Nothing in CEQA requires an EIR to explain why certain mitigation measures are infeasible.’ [Citation.] Nor must an EIR analyze in detail mitigation measures it concludes are infeasible. . . . [¶] . . . [¶] An EIR must respond to comments making specific suggestions for mitigating a significant impact unless the suggested mitigation is ‘facially infeasible.’ . . . When comments suggest additional mitigation and are supported by expert opinion or technical evidence, the EIR must provide a detailed evidence-based response.” (Practice under the California Environmental Quality Act, supra, § 14.10, pp. 14-13 –14-14.) The Town points to no mitigation measures that it or others suggested would reduce the impact of traffic (or the other impacts it claims are inadequately mitigated). That means that the mitigation measures imposed by the County stand alone, there being no discussion of alternative measures that were rejected. The consequence is that parties challenging a certified EIR are able to simply say that an adopted mitigation measure is ineffective or not good enough. But unless there is a record of alternatives, with supporting information showing greater effectiveness, such an approach places courts in an uncomfortable if not untenable position. Aware that we lack the scientific expertise and are “not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated” (Laurel Heights, supra, 47 Cal.3d 376, 393), how do courts evaluate a claim that a mitigation measure is ineffective when there is nothing in the record showing the existence of a more effective measure? Given the normal appellate presumptions of regularity, plus deference to the local agency’s decision, how are courts supposed to determine whether a measure will not truly mitigate, or whether other measures would better mitigate? 57

standard of review in favor of the lead agency to resolve disputed questions of fact relating to sufficiency of the methodology used to analyze the potential traffic impact of the project. (See Saltonstall[, supra,] 234 Ca1.App.4th [549,] 581 [challenge to the factual sufficiency of the EIR’s traffic analysis is reviewed under the deferential substantial evidence standard].) The EIR’s traffic analyst’s choice of methodology to determine the project’s potential traffic impact along Tiburon was consistent with established industry standards and there is substantial evidence in the record to show it was suitable for this location. “While the Town’s subsequent 2013 ‘school-rush’ traffic study showed a slight increase in car volume for Avenida Miraflores, it also showed that the 2009 volumes were higher at the other two school-related intersections. This slightly higher traffic count four years later at Avenida Miraflores does not prove there was not substantial evidence to support the 2009 study’s methodology of analyzing AM/PM business commute hours to estimate the project’s potential impacts on LOS along Tiburon Blvd. “It is settled that the County is not required to conduct every requested test in order to satisfactorily analyze a potential impact, and ‘our courts have repeatedly emphasized that an EIR must demonstrate a good faith effort at full disclosure; it does not require perfection, nor exhaustive analysis. [Citation.]’ (South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 342-343.) ‘A project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR. That further study . . . might be helpful does not make it necessary.’ (Laurel Heights, supra, 47 Cal.3d [376,] 415.) The County’s traffic analyst ‘was entitled to rely on the methodology and conclusions it articulated in its draft

33 “5.5-1(a) requires implementation of construct BMPs shown on the applicant’s Stormwater Control Plan as well as preparation of a Stormwater Pollution Prevention Plan to be implemented during construction that pays particular attention to: (1) the construction access road and associated vehicular pollutants; (2) vehicle wash areas to ensure that sediment is not tracked onto Paradise Drive; (3) fuel and other toxic compound storage; (4) BMPs to control sediment and erosion; (5) revegetation; and (6) trash control. “5.5-1(b) requires implementation [of] the post-construction BMPs shown on the applicant’s Stormwater Control Plan that detains the post- development increase in peak flow rates, directs roof runoff and runoff from other future residential impervious surfaces to bioretention areas, and installing a Filterra Bioretention Systems in roadway catch basins. Also requires preparation of a Stormwater Control Plan as a stand-alone document that details post-project stormwater control measures and utilizes information from the County Code and the County’s Guidance for Applicant’s, Stormwater Quality Manual for Development Projects in Marin County. “5.5-1(b) also requires incorporation of site-appropriate BMPs in the project Stormwater Control Plan for short- and long-term implementation in order to comply with the requirements of the Phase II NPDES [National Pollutant Discharge Elimination System] permit that includes: (1) monthly street sweeping; (2) informative documentation regarding the use of less toxic pest management procedures, including integrated pest management; and (3) bioswales, or other geotechnically appropriate methods for treatment of runoff from the lots’ impervious surfaces.” “5.5-3(a) requires the applicant to implement those measures in Mitigation Measure 5.5-1(a) that require compliance with NPDES Construction General Permit requirements for construction activities that disturb more than one acre. It also requires the applicant to add a provision to the Project CC&Rs stating that the Property Owners Association would be responsible for ensuring that the developer of each lot be required to meet all conditions specified in the NPDES Construction General Permit. “5.5-3(b) requires the applicant to implement Mitigation Measure 5.5- 1(a), which requires the applicant to prepare a Stormwater Pollution 76

preservation as stated in Mitigation Measure 5.6-1(b). Marin County CDA— Planning Division shall review and approve the RMP in consultation with the MCOSC and all applicable agencies . . . . ) The RMP shall be written by a qualified biologist with expertise in the various sensitive resources to be covered by the RMP. At a minimum, the RMP shall include the following: “Allowed and prohibited activities on preserved lands. “The location and type of any fencing, signs, and/or displays to be constructed on preserved lands. “A monitoring and management plan for non-native and/or invasive species, or pathogens, considered detrimental to protected resources (weed abatement, invasive species removal, SODS management, CRLF predator control, etc.). “The types and frequency of any maintenance activities to be conducted on preserved lands (litter removal, fence or sign repairs, etc.). “A Fuel Management Plan element to ensure that vegetation on the persevered areas and adjacent private lots within the project site would be maintained consistent with all current and future fire safety guidelines. The plan shall include provisions for mitigating woodland impacts as a result of fuel management activities through woodland enhancement in unaffected areas of the site. “A mitigation, monitoring and management plan for any sensitive habitats to be restored, enhanced or created on preserved lands (wetlands, CRLF habitat, etc.) as required by the EIR mitigation measures or that may be required as a result of permit conditions of regulating agencies. The plan shall include the extent of the monitoring period, quantifiable performance measures and success criteria; an adoptive management component with remedial measures should performance measures fall short of success criteria; quantifiable final success criteria; and once-annual report of findings to be provided to the County and any applicable resource agencies. “A monitoring plan to monitor the condition of resources occurring on preserved lands and adjacent private lots within the project site. This monitoring plan would help the responsible public agency or non-profit determine if private landowners are engaging in activities which are prohibited under the CC&Rs and which are having adverse effects on adjacent preserved resources. A component of the monitoring plan would be to ensure that adjacent private lot owners with the project site are managing vegetation on their lots consistent with [] current and future fire safety 78

determines it can serve the project. When grades exceeding 18 percent are necessary, grades of a maximum of 21percent are allowed for a maximum length of 200 feet within any 1,000-foot section of the driveway. Grades exceeding 18 percent must be paved with grooved, textured concrete to provide adequate traction. In addition, when the TFPD approves grades over 18 percent, a higher standard of building sprinklers is required as well as restrictions on building materials (i.e., no wood siding). [¶] . . . [¶] “The temporary construction access road would have a 25 percent maximum grade. Although the construction access road is not intended for everyday traffic, and is not required for emergency access to the project site, the TFPD is concerned that requiring construction vehicles delivering heavy construction materials to travel on road grades that exceed maximum standard of 18 to 21 percent would create a safety hazard. The TFPD staff has stated that the District’s response vehicles may not be able to utilize the construction access road in an emergency because the 25 percent slope/grade of the construction access road exceeded the District’s road grade limit of 18 to 21 percent. The TFPD is concerned that an accident resulting from use of the construction access road would increase the risk of an incident at a location that would be difficult for TFPD personnel and equipment to access. “The project sponsor submitted two letters with the application that address the feasibility of using the proposed temporary construction access road for construction vehicle access during site grading and preparation and building construction. Ghilotti Construction Company, a company with a long history of residential project construction in Marin County, stated that they reviewed the proposed temporary construction access road with a maximum 25 percent inclined grade, and that in their opinion the road would be adequate for the primary construction access for the project provided the

teeth or clenched her fists in frustration while enduring the often lengthy process leading to certification of an environmental impact report . . . for the project.” (Schellinger Brothers v. City of Sebastopol, supra, 179 Cal.App.4th 1245, 1249.) And as we went on to describe in the third appeal, it was a “development ensnared in a bureaucratic and politically charged morass that saw the certification of an EIR stymied for years.” (Schellinger Bros. v. Cotter (2016) 2 Cal.App.5th 984, 987.) There, five years. Similar concerns came to be expressed by some members of the Supreme Court. While delay was not a concern for the majority in Center for Biological Diversity v. Department of Fish & Wildlife, supra, 62 Cal.4th 204, it was for Justice Chin, in dissent. A majority of the Supreme Court held that the EIR was defective in two respects. Justice Chin disagreed that the EIR was deficient on those points, but it is the matter of delay that is relevant here. Justice Chin noted that “work on the current EIR began around 2005. After some five years of work, public comment, and revisions, the final EIR was certified in 2010.” (Center for Biological Diversity v. Department of Fish & Wildlife, supra, 62 Cal.4th 204, 247 (dis. opn. of Chin, J.).) That was only the beginning. Five years later, “this appeal will end, and the writ will issue. At some point after that, the EIR will have to be revised, with the necessary period of public comment, etc. . . . Then it is predictable that yet more litigation will follow the finalization of the new EIR. Given the glacial pace of litigation, this will easily take years.” (Id. at p. 254 (dis. opn. of Chin, J.).) Justice Chin concluded with a warning worthy of Cassandra: “We have ‘caution[ed] that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.’ ” (Center for Biological Diversity v. Department of Fish & Wildlife, supra, 62 Cal.4th 204, 253, quoting Citizens of

Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d 553, 576 (dis. opn. of Chin, J.).) Every member of the court agreed that “CEQA is not intended as a population control measure.” (Center for Biological Diversity v. Department of Fish & Wildlife, supra, 62 Cal.4th 204, 220; id. at pp. 245, 254 (dis. opn. of Chin, J.).) However, for Justice Chin—and Justice Corrigan, who shared his concern (id. at p. 244 (conc. & dis. opn. of Corrigan, J.)—CEQA litigation threatened to become “a never-ending battle of attrition with ever-changing targets for project opponents to aim for.” (Id. at p. 245 (dis. opn. of Chin, J.).) “Delay can become its own reward for project opponents. . . . [T]his is a recipe for paralysis. But CEQA is not meant to cause paralysis.” (Id. at p. 254 (dis. opn. of Chin, J.).) This case vindicates the worst of Justice Chin’s fears. He was dealing with a proposed project that would over 20 years house almost 21,000 people on 12,000 acres. The scope of Martha’s project has always been immensely more modest. In fact, since the 1976 Judgment, Martha appears to have never sought to build more than 43 units on the property. We’ll say it again—43 single-family residences. Not a steel mill by a major river. Not a new municipal airport. Forty-three suburban homes. This dispute is almost as old as CEQA itself. When finally certified in 2017, the EIR had been more than 20 years in the making, ballooning to almost three times the recommended maximum size of 300 pages. And now it is 2022, five more years later. CEQA was meant to serve noble purposes, but it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density. (Comment, A Twisted Fate: How California’s Premier Environmental Law Has Worsened the State’s Housing Crisis and How To Fix It (2022) 49 Pepperdine L. Rev. 413, 467 [“CEQA has not aged well, as the wrong people have discovered the right ways to make CEQA serve their own interests”];

Tiburon Open Space Committee v. County of Marin

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

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