Filed 3/2/18 4140 E. Hammer Lane, LLC v. County of San Joaquin CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----




4140 E. HAMMER LANE, LLC,

Plaintiff and Appellant,

v.

COUNTY OF SAN JOAQUIN et al.,

Defendants and Respondents;

SCG PROPERTIES, LLC, et al.,

Real Parties in Interest and
Respondents.
C084422

(Super. Ct. No.
STK-CV-UWM-2016-0002787)



In this action brought pursuant to the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq.), plaintiff and appellant 4140 E. Hammer Lane, LLC, appeals from the trial court’s denial of its petition for writ of mandate directing the County of San Joaquin (the County) and its Board of Supervisors (the Board) to vacate its approval of amendments to its general plan and zoning ordinance relative to a certain parcel of real property and its approval of a negative declaration relative to those amendments. Appellant contends the trial court erred in concluding it lacked standing to file suit based on its failure to object to the general plan amendment and zoning ordinance amendment. It also contends the County wrongly defined the project to exclude the applications for site approval to develop the subject property as a gas station with mini mart, fast food restaurant, and full service restaurant, and that substantial evidence supports a fair argument that the entire project, including the development of the parcel, may result in a significant impact to the environment requiring preparation of an environmental impact report (EIR). We conclude appellant has standing, that the County did err in its definition of the project, and that this error is presumptively prejudicial. Therefore, we will reverse the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Real party in interest SCG Properties, LLC, applied to the County to amend its general plan map designation of two parcels totaling 14.9 acres south of Hammer Lane from low density residential (R/L) to general commercial (C/G) (application No. PA-1500159), and to amend its zoning ordinance relative to the same parcel from agriculture urban reserve—20 acre minimum (AU-20) to general commercial (C-G) (application No. PA-1500160) (collectively, the project). The County prepared an initial study and drafted a memorandum to the Board with its recommendation that the project be approved with a negative declaration. The memorandum from staff to the Board indicated that the project, which was limited to the general plan amendment and zoning redesignation, would not have a significant effect on the environment.
However, in the “project description” portion of that memorandum, staff referenced an “underlying project” which was described as “the construction of a gasoline sales-combination, eating establishment-convenience, and eating establishment-full service.” The initial study also references “underlying projects” in the project description. There, the underlying projects are described as “a gas station, mini mart, fast food restaurant and a full service restaurant.” Additionally, the initial study indicated that the “potential population” included a “[g]as station with mini mart, fast food restaurant and a full service restaurant.” The staff report also indicates the applicant has already submitted an application for a minor subdivision to subdivide the existing parcel as well as a site approval application to use one of the parcels for a “gas station, mini market, fast food restaurant, and a full service restaurant,” but that those applications “are currently on hold pending approval of this application.”
At the Board’s hearing on whether to approve the project as defined by staff, appellant submitted a letter from its counsel “Re: Objections to 3928 E. Hammer Ln. Development Project (PA-1500159 and [PA-]1500160) and Request to Continue.” The letter is prefaced by stating that appellant “do[es] not necessarily oppose the development of the Project,” which it defines as “that real property proposed for commercial development by SGC [sic] Properties/Hammer Petroleum and identified in PA-1500159 and [PA-]1500160.” However, appellant then goes on to raise various concerns about “the potentially significant physical effects this development” may have on their own property. Among these concerns are increased traffic by users of the likely inhabitants of the property to be developed, public services access, noise impacts, and alcohol sales near a school.
On February 23, 2016, the Board approved the applications to amend the general plan and to rezone the parcel. In so doing, the Board found that “the project will not have a significant effect on the environment,” that “[a] Negative Declaration was prepared for this project pursuant to the provisions of CEQA,” and that “[f]indings were adopted pursuant to the provisions of CEQA.” Appellant petitioned the trial court for a writ of mandate directing the County and the Board to vacate and set aside their approval of the negative declaration and approval of the general plan amendment and zoning reclassification. The trial court denied appellant’s petition for writ of mandate, finding appellant lacked standing based on its failure to comply with section 21177, subdivisions (a) and (b), that substantial evidence supports the Board’s decision, and that appellant’s claims otherwise fail.
DISCUSSION
Appellant contends the trial court erred in concluding it lacked standing to challenge the Board’s approval of amendments to the general plan and zoning ordinance and a negative declaration relative to those amendments. Appellant also contends the County prejudicially erred in approving the negative declaration relative to those amendments because they did not constitute the entirety of the project and there is a fair argument the project as a whole will have a significant impact on the environment necessitating completion of an EIR. We agree the trial court erred in concluding appellant lacked standing to raise these issues. We also agree the County erred in its definition of the project as excluding the specific site plan referenced as the “underlying project.” Finally, we conclude this error is presumptively prejudicial. Therefore, we reverse the judgment.
1.0 Ability to Challenge County’s Decision
Appellant contends the trial court erred when it found appellant lacked standing to challenge the County’s decision because it did not object to the project as it was defined by the County. Because we conclude appellant sufficiently raised its objections to the Board’s attention prior to the Board’s approval of the negative declaration, we agree.
“An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” (§ 21177, subd. (a).) Additionally, “[a] person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination pursuant to Sections 21108 and 21152.” (§ 21177, subd. (b).) “The purpose of the administrative exhaustion requirement [set forth in section 21177] is to ensure the agency has been given the opportunity to respond to objections before there is litigation. Accordingly, a member of the group seeking judicial relief need not have personally raised the specific CEQA grounds being contested, so long as someone else presented the objections to the agency. ‘Thus, a party can litigate issues that were timely raised by others, but only if that party objected to the project approval on any ground during the public comment period or prior to the close of the public hearing on the project.’ ” (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 573-574.)
The dispute here centers on whether appellant sufficiently objected by submitting its letter to the Board and by stating its concerns at the public hearing before the Board. “ ‘ “[G]eneralized environmental comments” ’ or ‘ “relatively . . . bland and general references to environmental matters” ’ or “ ‘isolated and unelaborated comment[s]” ’ are insufficient, but comments need only ‘ “ ‘be sufficiently specific so that the agency has the opportunity to evaluate and respond to them’ ” ’ to constitute an objection that confers standing.” (Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35, 41-42.) Additionally, “no matter whether phrased as a declarative sentence or a question,” “a comment that raises questions about [the] proposed project” “is fairly understood as an expression of disapproval,” and “[a]s such, it constitutes an objection.” (Id. at p. 42.)
Here, appellant submitted a letter to the Board “Re: Objections to 3928 E. Hammer Ln. Development Project (PA-1500159 and [PA-]1500160) and Request to Continue.” While the letter does state that appellant “do[es] not necessarily oppose the development of the Project,” the letter also raises various concerns about “potentially significant physical effects” that may result from increased traffic by users of the likely inhabitants of the property to be developed, public services access, and increased noise. The letter also specifically raises a concern that the County is engaging in “piecemealing” by not considering the specific environmental effects of the contemplated development at the same time as it considers the proposed general plan amendment and zoning ordinance amendment. The letter even cites case authority for the proposition that the County may not defer analysis of the traffic impacts of the development and specifically argues that the County must prepare an EIR to address these impacts. Based on this letter, in addition to its comments at the hearing before the Board, we conclude appellant sufficiently fulfilled its duty to “object” as required by section 21177, subdivision (b).
We further conclude that among the issues it presented and may raise in this proceeding are (1) whether the project definition is sufficient, (2) whether an EIR is required for the entirety of the project, (3) whether the project will have a significant impact on traffic or noise, and (4) whether the project comports with the general plan with regard to traffic, infrastructure access, and the proximity of the development to a school. Therefore, it has fulfilled the requirements of section 21177, subdivision (a) with respect to those issues. Accordingly, we conclude the trial court erred in determining that appellant lacked standing to pursue the instant lawsuit. Nevertheless, because the trial court also addressed the matter on the merits, our analysis does not end here.
2.0 Scope of Project/Piecemealing
Appellant contends the County erred in its definition of the project as encompassing only the amendments to the general plan and zoning ordinance and excluding what was referenced in the negative declaration as the “underlying project.” Appellant further contends that this error is presumptively prejudicial. We agree.
“CEQA requires public agencies to undertake an environmental review of proposed projects that require their discretionary approval.” (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1222.) “The scope of the environmental review conducted for the initial study must include the entire project.” (Ibid.) “ ‘Project’ ” is defined broadly in the CEQA Guidelines as “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . .” (CEQA Guidelines, § 15378, subd. (a).) We review de novo, based on the undisputed facts in the record, “which acts constitute the ‘whole of an action’ ” for purposes of ascertaining the scope of the project necessitating CEQA review. (Tuolumne Citizens, supra, 155 Cal.App.4th at p. 1224.)
Here, the County, in its negative declaration, described the project as “a General Plan map amendment and Zone Reclassification application for two parcels totaling 14.9 acres. The General Plan map amendment is to change the General Plan designation of the parcels from R/L (Low Density Residential) to C/G (General Commercial). The Zone Reclassification is to change the Zoning designation of the two parcels from AU-20 (Agriculture-Urban Reserve, 20-acre minimum) to C-G (General Commercial). The underlying project is the construction of a gasoline sales-combination, eating establishment-convenience, and eating establishment-full service.” And, the initial study prepared by the County indicates, in its description of the project, that “[t]he underlying projects are a gas station, mini mart, fast food restaurant, and a full service restaurant.” The potential population listed in the initial study also references a “[g]as station with mini mart, fast food restaurant, and a full service restaurant.” The initial study further indicates that “[i]f approved, the proposed application [for general plan map amendment and zoning reclassification] would allow the applicant to apply for a Site Approval application to conditionally permit the Gasoline Sales-Combination, Eating Establishment-Convenience, and Eating Establishment-Full Service use types,” and acknowledges the areas surrounding these parcels have certain noise requirements that “[a]ll future development and underlying projects must meet . . . .” Further, regarding transportation, the initial study asserts that for the underlying proposed uses, “[t]he Department of Public Works and Caltrans have been notified . . . and will determine if there will be a significant impact on traffic . . . .”
Additionally, the County acknowledged in its staff recommendation to the Board that applications had been submitted for developing these specific site projects but that those “applications are currently on hold pending approval” of the general plan and zoning ordinance amendments. Indeed, the County expressed that it “typically” and habitually places “on hold” a site approval for an underlying project until the Board takes action on the general plan amendment and zone reclassification. This practice means that the only environmental review conducted initially relates to the amendment and reclassification, with “environmental for the underlying projects, which may require a traffic study, may require . . . some additional environmental work, could require an EIR” would not be completed until later, after the Board has already approved the general plan amendment and zone reclassification.
Based on these undisputed facts, it is clear the general plan amendment and zoning reclassification were not the “entire project”; rather, they were part of a project that also included development on the site of a gas station with mini mart, fast food restaurant, and full service restaurant, for which applications had been submitted to the County. That these specific site developments were known and contemplated as part of the reason for the general plan amendment and zoning reclassification at the time of their approval means the environmental review conducted in association with the general plan amendment and zoning reclassification also had to consider the remainder of the larger project. (See Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 194.) Neither the fact that it is the County’s long-standing policy to split the environmental review into phases, nor the fact that an additional approval of the site-specific development will be required, nor the possibility that this amendment to the general plan and zoning ordinance would not be approved excuse the County from its obligation to conduct an environmental review of the entire project at this initial step. (Id. at pp. 194-195.) Accordingly, we conclude the County erred in defining the scope of the project to exclude the application to develop the parcels with a gas station, mini mart, fast food restaurant, and full service restaurant and to omit environmental review of those aspects of the project.
Moreover, because the County’s omission from the initial study of the site-specific development plans made any meaningful assessment of the project’s potential environmental impacts impossible, we presume the County’s error was prejudicial. (See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236-1237; see also Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1024-1025.) For, the County’s assessment that there was no fair argument that the project may have any potentially significant environmental impacts was premised on its failure to consider the entirety of the project. Without information in the initial study or otherwise presented to the Board reflecting what the effects of the entire project will be, the purpose of CEQA to have the Board make an informed decision is frustrated. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 402 [“CEQA’s fundamental goal [is] fostering informed decision making”].) Therefore, we conclude the judgment of the trial court must be reversed and the matter remanded to the trial court with directions to issue the writ of mandate.
DISPOSITION
The judgment of the trial court is reversed and the matter is remanded to the trial court with directions to issue a writ of mandate directing the County of San Joaquin and its Board of Supervisors to vacate approval of the amendments to its general plan and zoning ordinance relative to the two parcels totaling 14.9 acres in question and its


approval of a negative declaration relative to those amendments. Appellant is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)



BUTZ , J.



We concur:



RAYE , P. J.



ROBIE , J.