In a lengthy and scholastic published opinion filed May 27, 2014, the Fifth District Court of Appeal reversed and remanded the trial court’s decision, which had upheld the EIR and other approvals (including a General Plan Amendment, Specific Plan, rezoning, and Development Agreement) for the Friant Ranch project.  The proposed project was a master-planned senior community to be located on 942 acres of unirrigated grazing land adjacent to Friant near the San Joaquin River.  Sierra Club v. County of Fresno (5th Dist. 2014) __ Cal.App.4th __, 2014 WL 2199317.  The Court of Appeal rejected Plaintiffs’ and Appellants’ claims of General Plan inconsistency and inadequate hydrogeology and wastewater disposal analysis, but found the EIR’s air quality impacts analysis insufficient and its related mitigated measures vague, unenforceable and improperly deferred.  The lengthy opinion contains various holdings and analyses of interest to CEQA and land use practitioners and their clients; while few break truly new ground, many serve as helpful reminders, primers and interstitial analyses of settled principles.  Key takeaways in this regard include:

  • “A local [agency’s] determination that a development project is consistent with [its] general plan is subject to judicial review under the abuse of discretion standard.”  (Citing Families Unafraid to Uphold Rural, etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338.)  This standard is the “same in substance” as the “deferential arbitrary and capricious standard of review.”  Under it, the appellate court reviews the agency’s consistency decision directly, independent of the trial court’s decision, and judges the agency’s factual findings and interpretation of ambiguities under a deferential standard, i.e., upholding them if any reasonable person could have reached the same conclusion.
  • Applying this standard, the court rejected Appellants’ rather extreme argument that County was precluded from ever changing the land use designation of agricultural lands by a County Ag Use Policy in its General Plan requiring that “County shall maintain agriculturally–designated areas for agriculture use and shall direct urban growth away from valuable agricultural lands to cities, unincorporated communities, and other areas planned for such development where public facilities and infrastructure are available.”  Because in context the language of the Ag Use Policy was ambiguous, and County’s interpretation of it and other General Plan provisions to allow changes in land use designations from “Agriculture” to another use was one to which the language was reasonably susceptible, County did not abuse its discretion in so interpreting its plan.
  • Plaintiffs and Appellants failed to exhaust administrative remedies (as required by Government Code § 65009(b)(1)) on their argument that County’s project approval was inconsistent with the General Plan’s traffic level of service (LOS) policies for roadways and intersections operating at worse-than-acceptable LOS.  Exhaustion is a jurisdictional prerequisite to a court action challenging a planning decision.  The requirement’s purposes and functions include providing certainty to property owners and local governments, preventing surprise to agencies and allowing them an opportunity to address issues as needed before subjecting them to judicial review, and lightening the courts’ burden by encouraging the development of a complete administrative record and allowing the agency to exercise its expertise on the issues raised.  The petitioner has the burden to prove it exhausted and whether exhaustion occurred is usually deemed a question of law reviewed de novo on appeal.
  • In order to exhaust on an issue, objections must be sufficiently specific to allow the agency to receive, evaluate and respond to articulated factual and legal issues before its actions are subject to judicial review.  While appellate courts differ somewhat over the degree of specificity required, the Plaintiffs failed to exhaust their General Plan LOS inconsistency argument under any version of the standard since the comment letter they relied on to do so in relevant part failed to mention the General Plan, consistency, the statutory consistency requirement, or the LOS Policy allegedly violated.  Accordingly, the “County was not put on notice that it should explain how it resolved various issues concerning the application of the traffic policies to the facts of this case” and “not given an opportunity to respond to the factual and legal issues related to the application of the LOS Policy before its actions were subject to judicial review.”
  • Turning to Appellants’ CEQA Claims, the Court recognized they are governed under Public Resources Code § 21168.5, such that courts independently review claims of legal error (i.e., failure to proceed in the manner required by law) and review claims of factual error under the substantial evidence standard.  Delving more deeply into the nature and standard of judicial review applicable to “failure to proceed” claims, the Court found that “claims that the information presented in an EIR is legally inadequate under CEQA” are generally of two types:  (1) the “easy to decide” variety “where the EIR does not discuss a topic that a statute, regulation or judicial opinion says must be discussed”; and (2) the “more complex” type of claim which “involves an EIR that has at least addressed the required topic” but asserts “that the information provided about that topic is insufficient.”  This latter type of claim, which was presented by Appellants, involves courts drawing a conceptual line between EIR discussions that are either sufficient or insufficient to comply with CEQA’s information disclosure requirements, and presents a question of law subject to independent judicial review.  This analysis is guided only by general principles, the gist of which is that “plaintiffs claiming the information in an EIR was insufficient must demonstrate that the failure to include relevant information precluded informed decision making by the lead agency or informed participation by the public”[,] although “[p]laintiffs need not show that the outcome of the administrative process would have been different if the lead agency had complied with CEQA’s disclosure requirements.”
  • Applying these somewhat amorphous standards, the court upheld the EIR’s wastewater impacts analysis.  While it found a reader of the draft EIR (DEIR) and its appendices would be confused about the required acreage of the project’s proposed effluent storage pond because the numbers provided were inconsistent, the Final EIR (FEIR) and other administrative record evidence, including a post-FEIR Infrastructure Management Plan and expert testimony at public hearings before the County’s Board, dispelled any possible confusion about issues concerning the project’s effluent output, storage requirements, sufficiency of storage capacity, and treated was wastewater reuse and disposal.
  • In resolving various other issues related to Appellants’ wastewater arguments, the court took some interesting positions.  For one, it exercised its discretion to consider plaintiffs’ wastewater disposal arguments on appeal, even though they were not presented to the trial court, because “issues concerning the adequacy of a CEQA disclosure present questions of law” and “matters involving [wastewater] disposal … affect the public interest ….”  Further, it rejected defendants’ arguments that their disclosure was legally adequate because expert opinions constitute substantial evidence as “off point.”  According to the court, “The existence of substantial evidence in the record does not mean that sufficient information was disclosed – they are separate legal issues.”  Finally, the court rejected defendants’ arguments that plaintiffs had shown no prejudice in any event because the certified EIR asserted there would be no significant impact even if tertiary treated efficient reached the San Joaquin River; again, according to the court, the County’s Board did not necessarily agree with this conclusion when it certified the FEIR, and could have been convinced by the alternate position that it was improbable any effluent would reach the river.  These pronouncements of the court underscore the need for public agencies and project proponents to ensure that the lead agency’s CEQA and project approval findings are drafted to make clear its analytic route and the basis for its significance and mitigation determinations, including whether it adopts or rejects relevant EIR determinations.
  • In rejecting Appellants’ arguments focusing on the DEIR, the Court clarified one of its earlier decisions, San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App. 4th 713, holding that case “did not establish new rules of law heightening the disclosure required in a draft EIR or preventing a final EIR from curing a draft EIR’s omission of information.”
  • Turning to heart of the case – the EIR’s air quality impact analysis – the court first noted the project’s physical setting and location in the San Joaquin Valley Air Basin, a severe non-attainment area for ozone and PMIO, and the EIR’s conclusion that even with mitigation the project would cause significant and unavoidable adverse air quality impacts.  The EIR’s unelaborated raw numbers looked ugly; while the Air District’s thresholds of significance were 15, 10 and 10 tons per year for the criteria pollutants PM10, R0G and NOx, respectively, the project would emit approximately 117.38, 109.52, and 102.19 tons per year of those pollutants, i.e., estimated emissions that were “from seven to 10 times larger than … the [significance] thresholds.”  The court held the EIR’s discussion of air quality impacts failed to analyze and explain in adequate detail how the pollutants emitted by this project would impact public health.  The EIR’s discussion of adverse health effects was general in nature, and “short on analysis” because “[i]t did not correlate the additional tons per year of emission that would be generated by the project (i.e., the adverse air quality impacts) to adverse human health impacts that could be expected to result from those emissions.”
  • To illustrate its point, the court noted that “[t]he information provided does not enable a reader to determine whether the 100-plus tons per year of PMIO, ROG and NOx  will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or nonattainment basis [sic; basin] or, in contrast, will be no more than a drop in the bucket to those people breathing the air containing the additional pollutants.”  The EIR’s “lack of information about the potential magnitude of the [project’s adverse air quality impacts’] impact on human health” was also demonstrated by its failure to indicate whether, and if so, to what extent, the project would result in additional days during the year when Fresno area air pollution exceeded federal and state standards.  This lack of information correlating the project’s air quality impacts to human health effects rendered the EIR’s analysis legally inadequate under CEQA and also precluded the County decision makers from performing the required balancing of project benefits against adverse impacts which is necessary to support an adequate statement of overriding considerations.
  • The court also found fault with the EIR’s mitigation measures for air quality impacts in a number of respects.  The court found the relevant measures vague and unenforceable, in violation of CEQA’s “substantive requirement for mitigation measures”  contained in Guidelines § 15126.4(a)(2) that they “be fully enforceable through permit conditions, agreements, or other legally-binding instruments.”  The court “treat[ed] the question of vagueness as being part of an inquiry into enforceability because vagueness makes it difficult to identify the who-what-when essential to enforcement.”  The court held the challenged “provisions do not clearly state who is to do what and when that action must be taken[,]” thus leaving “the reader … to speculate whether County or the developer will perform the selection [of mitigation tree plantings]” and as to “who will determine if the [required HVAC catalyst] system is ‘reasonably available and economically feasible.’”  Such measures “are vague on matters essential to enforceability” and thus violate CEQA’s requirement that they be enforceable.  Further, the court held the EIR’s conclusion that the challenged measures would “substantially reduce” air quality impacts was unsupported by any quantification or EIR discussion, rendering the statement “a bare conclusion … not supported by facts or analysis as required by the disclosure principles set forth in [Association of Irritated Residents v. County of Madera (2003)] 107 Cal.App.4th [1383,] at pages 1390 through 1391[.]”
  • The court “exercise[d] [its] discretion” to hear Appellants’ “similar” argument of impermissible deferral of the formulation of mitigation measures, despite their failure to raise it in the trial court, because “the improper deferral of the formulation of a mitigation measure for a project of this size presents a question of law involving the public interest.”  The court acknowledged the “general rule” that “it is improper to defer the formulation of mitigation measures” and an “exception” that “applies when the agency has committed itself to specific performance criteria for evaluating the efficacy of the measures to be implemented in the future, and the future mitigation measures are formulated and operational before the project activity that they regulate begins.”  (Citing its own recent decision in POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 735, 738.)  Under those standards, the court found numerous of the 12 discrete measures developed by the EIR to mitigate air quality impacts lacked performance standards or criteria sufficient to evaluate the effectiveness of those enumerated (or any substitute) measures, and thus constituted impermissibly deferred mitigation.
  • Finally, the court addressed and rejected Appellants’ arguments that County’s CEQA compliance was defective with respect to County’s treatment of their request to require an off-site emission reduction program of the Air District known as a “VERA” (Voluntary Emission Reduction Agreement) as a condition of project approval.  Appellants argued County failed to respond with a good faith reasoned analysis to their comment requesting that a VERA be required.  The court found that the following response by the County satisfied the CEQA standard:  “[A] VERA is a voluntary agreement and therefore is not a mitigation measure that is enforceable by the County.  In addition, VERAs are typically handled prior to issuance of a tentative map.  However, the application will also be subject to an [ISR] [indirect source review], at which time the application will discuss a VERA with the [Air District].”  (Second brackets added.)  The County’s responses further pointed out “that the Air District had jurisdiction over various project-related approvals, including the action to ensure compliance with Rule 9510 [its ISR rule].”  County’s responses adequately served CEQA’s disclosure purpose, and plaintiffs failed to meet their burden to show any abuse of discretion as they “identified no statute, regulations or case law that requires the consideration of VERA at this point in the administrative process.”

The Fifth District’s decision covers and “drills down” on a number of land use and CEQA law basics, including those relating to the issues of general plan consistency, issue exhaustion, EIR adequacy, enforceable and deferred mitigation, and the related standards for judicial review.  It breaks little or no entirely new legal ground, except, perhaps, in setting forth what development and environmental issues – i.e., wastewater and deferred mitigation for large projects – are important enough in its view to allow plaintiffs to escape forfeiture for failing to raise them in the trial court.  It also explicates in significant detail the differences between two types of “failure to proceed” challenges to an EIR – total topic omission versus inadequate analysis on a topic – which are both reviewed as issues of law with no deference to the agency’s certification decision.  Further, it fleshes out previous case law requiring air quality impacts analysis to go beyond mere quantification and include correlation of a project’s adverse impacts to resulting human health effects in a meaningful way.  Finally, it provides useful practical guidance by addressing an argument made with increasing frequency by project opponents – i.e., that a local agency should mandate an Air District VERA as a condition of approval to address significant air quality impacts – and holds there is a reasoned basis for local agencies not to do so based both on the voluntary nature of a VERA and the fact that the issue will be raised in later project approval phases when the Air District acts as a responsible agency.

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