Gentry v. City of Murrieta (36 Cal. App. 4th 1359, 1995)

Opinion

RICHLI, J.

Appellant Rita Gentry (Gentry) raises virtually every conceivable objection under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) to the approval by respondent City of Murrieta (City) of a plan of respondent McMillin Communities (McMillin) to build 198 homes. The City found that the project, as mitigated, would have no significant environmental effects; as a result, it adopted a mitigated negative declaration and approved the project. The trial court rejected Gentry’s objections.

We, too, reject the vast bulk of Gentry’s objections and contentions. However, we agree with her that: (1) the City failed to comply with the requirement that it send a copy of its proposed negative declaration to one other public agency (not many other agencies, as Gentry claims); (2) the City imposed one mitigation condition (not many, as Gentry claims) which improperly deferred formulation of specific mitigation measures into the future; (3) the City improperly added certain mitigation conditions (but not as many as Gentry claims) after it released the proposed negative declaration for public review; (4) the trial court applied an incorrect standard of review; and (5) under the correct standard of review, there was substantial evidence to support a fair argument that the project would have certain significant adverse environmental effects (but, again, not as many as Gentry claims). Accordingly, we reverse and we direct the trial court to void the City’s adoption of the negative declaration and approval of the project.

I.

Factual and Procedural Background

Prior to 1988, McMillin’s predecessor in interest applied to the County of Riverside (County) for approval of a vesting tentative subdivision map for a project consisting of approximately 555 single-family homes near Murrieta Hot Springs, to be called Adobe Springs. In or about September 1988, in connection with Adobe Springs, the County prepared and certified an environmental impact report (EIR) (Adobe I EIR).

Meanwhile, the County was considering amending its comprehensive general plan (General Plan) by adopting the Southwest Area Community Plan (Community Plan), which would apply to, among other places, the Murrieta area. In March 1989, the County prepared and certified an EIR for the Community Plan (Plan EIR). On November 28, 1989, the County adopted the Community Plan. The Community Plan incorporated the Plan EIR by reference.

In February 1990, McMillin applied to the County for approval of a vesting tentative subdivision map for a 230-home project (later reduced to 198 homes) adjacent to Adobe Springs, to be called Adobe Springs II. Also in February 1990, McMillin applied for a zoning change for Adobe Springs EL The County and, later, the City treated these two applications interchangeably as a single “project” for CEQA purposes. We will follow their lead and refer to the two applications, collectively, as “the Project.”

As part of an initial study of the Project, the County considered reports prepared by or for McMillin’s predecessor in interest, including a general biological report, a biological report focused on the California gnatcatcher, a traffic report, a slope stability report, and an archeological report. The County solicited and received comments from other county departments, federal, state, and local agencies and other interested parties. The County also received unsolicited comments from Gentry, acting as representative of the Los Alamos Neighborhood Association.

On January 3, 1991, the County Planning Department staff completed an environmental assessment of the Project, Environmental Assessment No. 34807 (EA No. 34807). EA No. 34807 found that the Project as originally proposed would have a number of adverse environmental effects, including effects on traffic, water and sewer systems, recreational facilities, slopes, erosion, floodplains, and wildlife and vegetation. It also found, however, that each of these effects would be mitigated by measures prescribed by various public agencies, or, in the case of wildlife and vegetation, measures prescribed by the biological reports. It concluded that “although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described . . . have been or will be incorporated into the project.” Thus, it attached a proposed negative declaration.

On February 13, 1991, the County gave notice of its intent to adopt the negative declaration, and set a public hearing. A County Planning Department staff report dated February 20, 1991 concluded that the Project was consistent with both the General Plan and the Community Plan, and would have no significant effects on the environment. Thus, it recommended adoption of the negative declaration and approval of the Project. County Planning Department staff also prepared a list of conditions of approval of the Project, numbered 1 through 32. Many of these were environmental mitigation conditions.

The County Planning Commission held public hearings regarding approval of the Project and the proposed negative declaration on March 6, 1991, April 10, 1991, and May 1, 1991. Gentry submitted written materials to the County and appeared at these hearings; she argued in favor of either additional mitigation measures, or the preparation of an EIR.

On May 1, 1991, at the conclusion of the public hearings, the County Planning Commission unanimously recommended to the County Board of Supervisors that it adopt the negative declaration and approve the Project. On June 11, 1991, however, McMillin asked the County to send the administrative record on the Project to the City, which was about to be incorporated and which would have jurisdiction over the Project. Accordingly, on June 18,1991, the Coúnty deferred further consideration of the Project to the City.

The City was incorporated on July 1,1991. Also on July 1,1991, the City temporarily adopted all County ordinances, with the exception of the County’s General Plan. On October 22, 1991, the City adopted specified County ordinances permanently, again not including the County’s General Plan.

On January 9, 1992, McMillin submitted a planning application to the City in connection with the Project. On March 17,1992, the City gave notice of its intent to adopt a negative declaration regarding the Project, and set a public hearing.

On April 3, 1992, the City released a City Planning Department staff report on the Project. The report incorporated the County’s staff report. It recommended that two of the County’s conditions of approval be modified, and one new condition added; subject thereto, the report recommended adoption of a negative declaration and approval of the Project.

On April 7, 1992, the City held a public hearing on the Project. Gentry again submitted written materials, appeared at the hearing, and argued in favor of preparation of an EIR.

The April 7 public hearing was continued to May 5, 1992. In the interim, in response to comments at the April 7 hearing, McMillin procured supplemental reports on storm water drainage, groundwater recharge, and groundwater pollution. Two of these were dated April 22, 1992; the third was dated April 27,1992. Gentry claims that one of the reports was released on May 1, 1992, but that the other two were not given to the City until the continued public hearing on May 5,1992 at which the Project was approved. This finds some support in the record.

On May 5, 1992, the City released a second City Planning Department staff report, responding to issues raised at the April 7 public hearing. The report included a revised list of proposed conditions of approval numbered 1 through 128, together with a proposed mitigation monitoring program. Subject to these conditions, it again recommended adoption of a negative declaration and approval of the Project.

At the continued public hearing on May 5, 1992, one of the City staff’s proposed conditions of approval was modified and one new condition was added. McMillin accepted all the proposed conditions. Gentry again submitted written materials, appeared at the hearing, and spoke in favor of additional mitigation measures.

At the conclusion of the hearing, the City Council unanimously approved the negative declaration, the mitigation monitoring program, and McMillin’s application for subdivision map approval. The City Council found that: (1) the Project was consistent with existing zoning and land uses, and with all applicable state laws, local ordinances, and City policies; (2) there was a reasonable probability that the Project would be consistent with the City’s proposed general plan; (3) even if the Project proved to be inconsistent with the City’s eventual general plan, there was little or no probability of substantial detriment to or interference with the general plan; (4) environmental concerns had been or would be mitigated by conditions of approval; and (5) the Project as mitigated was not likely to have substantial adverse environmental effects. On May 19, 1992, the City Council approved McMillin’s application for a zoning change.

On September 2, 1992, Gentry filed a petition for peremptory writ of mandate and complaint for injunctive relief. On January 29, 1993, the trial court held a hearing on the petition. Following the hearing, it took the matter under submission. The parties then submitted further briefing.

On May 12, 1993, the trial court denied Gentry’s petition, finding, among other things, that: (1) the City proceeded pursuant to section 21083.3, which applies when a proposed residential development project is consistent with a general plan for which an EIR has been certified; (2) the applicable standard of review was that set forth in Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249 [232 Cal.Rptr. 772]; and (3) the City’s determination that the Project would not have a substantial adverse effect on the environment was supported by substantial evidence. However, the trial court also noted that if section 21083.3 had not applied, “then a negative declaration would not have been appropriate.” On May 20, 1993, the trial court entered a judgment denying the petition. On July 19, 1993, Gentry filed a timely notice of appeal.

n.

Outline of CEQA

A. The Environmental Review Process.

CEQA generally requires a state or local public agency to prepare an EIR on any activity it undertakes or approves which may have a significant effect on the environment.

CEQA lays out a three-stage process. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74 [118 Cal.Rptr. 34, 529 P.2d 66]; Cal. Code Regs., tit. 14, § 15002, subd. (k).) First, the agency must determine whether the particular activity is covered by CEQA. (Guidelines, § 15002, subd. (k)(l).) CEQA applies to any activity which is a “project,” and which is not exempt. Generally speaking, any activity a public agency has discretion to carry out or to approve which has the potential for resulting in a physical change in the environment is a “project.” (§§ 21065, 21080, subd. (a); Guidelines, §§ 15002, subds. (b), (c), (i), 15378, subd. (a).) Some “projects,” however, are statutorily exempt. (E.g., §§ 21080, subd. (b), 21080.01-21080.03, 21080.05, 21080.07-21080.08, 21080.7-21080.11, 21080.13, 21080.17-21080.19, 21080.21-21080.22; Guidelines, §§ 15260-15277, 15378, subd. (b).) In addition, if the Secretary of the Resources Agency finds that a class of projects will have no significant effect on the environment, he or she may declare such projects categorically exempt. (§ 21084, subd. (a); Guidelines, §§ 15300-15329, 15354.)

Second, the agency must determine whether the project may have significant environmental effects. (Guidelines, § 15002, subd. (k)(2).) Except when the project clearly will have such effects, the agency must conduct an initial study to assist it in making this determination. (Guidelines, §§ 15063, subds. (a), (c)(1), 15365.) During the initial study, the agency must consult with certain other interested public agencies. (§ 21080.3, subd. (a); Guidelines, § 15063, subd. (g).)

Based on the initial study, the agency may find no substantial evidence that the project may have a significant effect on the environment. In that case, in lieu of an EIR, it may adopt a statement that the project will have no significant environmental effect. Such a statement is called a negative declaration. (§§ 21064, 21080, subd. (c); Guidelines, §§ 15063, subd. (b)(2), 15064, subd. (g)(2), 15070, subd. (a), 15371.)

Similarly, the agency may find that, although the project as originally proposed might have had potentially significant environmental effects, the project has been modified by measures which mitigate these environmental effects, and there is no substantial evidence that the project, as modified, may have a significant effect on the environment. In that case, in lieu of an EIR, the agency may adopt a “mitigated” negative declaration. (Guidelines, § 15070, subd. (b).)

Before an agency adopts either a negative declaration or a mitigated negative declaration, however, it must give public notice of its intent to do so. (§ 21092; Guidelines, § 15072.) It must make the proposed negative declaration available to the public and to certain other interested public agencies for a specified period for review and comment. (Guidelines, § 15073.) It then must consider the comments it receives in determining whether to adopt a negative declaration. (Guidelines, § 15074, subd. (b).)

If the administrative record before the agency contains substantial evidence that the project may have a significant effect on the environment, it cannot adopt a negative declaration; it must go to on the third stage of the CEQA process: preparation and certification of an EIR. (§§ 21100, 21151; Guidelines, §§ 15002, subd. (k)(3), 15063, subd. (b)(1), 15064, subds. (a)(1), (g)(1), 15362.)

The EIR is the “heart” of CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at p. 1123; No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 84; Guidelines, § 15003, subd. (a) .) It is a vehicle for identifying, analyzing, disclosing, and, to the extent possible, avoiding a project’s significant environmental effects. (§§ 21002.1, subd. (a), 21061; Guidelines, § 15002, subds. (a), (f).) However, an agency may undertake or approve a project even though the EIR indicates that it will have significant environmental effects, provided the agency finds that the expected benefits of the project outweigh its environmental effects, and that further mitigation of these effects is not feasible. (§§ 21002, 21002.1, subds. (b) , (c), 21081; Guidelines, §§ 15043, §§ 15091, 15092, subd. (a), 15093, subd. (a).)

B. “Piggy-Backing” Provisions for Basing an Environmental Review on a Previous Environmental Review.

Once a negative declaration has been adopted or an EIR has been certified for a project, this three-stage process is technically at an end. When new activities may come up for approval, however, they may be related to the original project in such a way that repeating the entire three-stage process would be wasteful. CEQA therefore affords a variety of mechanisms for “piggy-backing” environmental review of successive approvals.

First, if the new activity can be deemed a change to the original project, the agency may limit its environmental review to the question of whether to require a subsequent or supplemental EIR (SEIR). Generally, once an EIR has been prepared, a public agency cannot require the preparation of an SEIR unless either: “(a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [