Heritage Fresno v. Redevelopment Agency of Fresno

Filed 5/28/08 Heritage Fresno v. Redevelopment Agency of Fresno CA3

NOTTOBEPUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Fresno)

----

As part of the environmental review for a redevelopment project in downtown Fresno, pursuant to the California Environmental Quality Act (Pub. Resources Code, 21000 et seq.

(CEQA);^[1]Cal. Code Regs., tit. 14, 15000 et seq. (CEQA Guidelines)), appellants Redevelopment Agency of the City of Fresno (RDA) and real party in interest City of Fresno (the City) conducted environmental review and adopted a mitigated negative declaration (MND) regarding site clearance, acquisition, and transfer of land, which included as a mitigation measure the relocation of five historic homes from their site in Old Armenian Town (OAT) to a specific site (the fire station site). The MND reflected that this mitigation measure would require the project developer (real party in interest Old Armenian Town, LLC) to modify its plan to build a parking garage on the fire station site. The developer did not modify its plan. The City later certified an environmental impact report (EIR) which treated the prior mitigation measure as a mere suggestion, determined the fire station site was not feasible due to the developers plan to build a parking garage there, and designated a different site as the final receiver site (FRS) for the historic homes.

The City/RDA appeal from a judgment granting a peremptory writ of mandate, upon the petition of Heritage Fresno and Friends of Old Armenian Town (collectively Heritage Fresno), ordering RDA to set aside its approval of the EIR and comply

with its earlier MND. The appeal out of Fresno County was transferred to this court pursuant to California Rules of Court, rule 10.1000.

The City/RDA contend there was no impermissible change of mitigation measures. We shall conclude the City/RDA could not abandon the MNDs mitigation measure without at least making findings justifying a change, supported by substantial evidence. No finding or substantial evidence of such justification appears in this record. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2005, Heritage Fresno filed a petition for writ of mandate and complaint for other relief, asserting CEQA violations (and other claims not at issue in this appeal), against RDA and various real parties in interest, including the City of Fresno and Old Armenian Town, LLC. Other real parties in interest were dismissed per stipulation.

The five historic homes at issue are five small residences (which may be converted to other uses) constructed before 1950 that represent a vestige of Armenian cultural history from a 60-block mixed-use area in downtown Fresno dating back to 1915 and known as Old Armenian Town. By the 1980s, Armenian Town was no longer identifiable as a community and was split in half by construction of Freeway 41.

The OAT Project encompasses an area bounded by M Street, N Street, Ventura Street, and Freeway 41. The OAT Project

consists of two phases: Phase I included construction of a new courthouse for the California Court of Appeal, Fifth Appellate District (which required moving the historic homes and which was determined to be exempt from CEQA after the 2002 MND was adopted). Phase II is the private development of office space, retail space, an Armenian Culture Center, and renovation of an existing Lahvosh Bakery retail outlet.

In 2001, an EIR was prepared and certified for Convention Center Redevelopment Projects but also discussed potential impacts of various projects then under review by RDA in the Convention Center area, including what was then called Cornerstone Fresno, encompassing the area now known as the OAT Project.

As to both phases of the OAT Project, the City/RDA treated separately the issues of site clearance, acquisition, and transfer of land and, in November 2002, the City adopted a MND with a mitigation measure designating the fire station site as the receiver site (not a temporary storage site, as suggested by the City/RDA) for the historic homes -- even though it was known at the time that the developer wanted to build a parking garage on the fire station site, as reflected in a Conceptual Master Plan.

As to the MND, the record contains two similar Initial Studies (CEQA Guideline, section 15365), one dated September 10, 2002, and the other dated September 24, 2002. We do not know

why the City/RDAs appellate brief cites the earlier document, and we shall use the latter one because the latter date is expressly cited in the subsequent Resolution adopting the MND, but we observe both Initial Studies are almost identical with respect to the matter at issue in this appeal. Although the 2002 Initial Study is not being directly challenged in this appeal (and was the subject of prior litigation which reached a settlement^[2]), it is pertinent to the current issue on appeal as to whether the 2004 EIR could change the 2002 MNDs adoption of the fire station site as the receiver site for the historic homes.

The September 24, 2002, Initial Study described the project as follows:

[The project] encompasses a total area of approximately 9.72 acres generally bounded by Ventura Street on the north, O Street on the east, State Route 41 on the south and M Street to the west. . . . [] . . . [] The proposed project includes . . . the vacations of N Street, the N Street/O Street alley, and the M Street/N Street alley; acquisition of the project area by [RDA]; review of associated development agreements; and removal, relocation, and/or demolition of the existing

improvements, including the fire station, nine (9) homes, a church, a bakery, a restaurant, and several commercial and warehouse buildings; and off-site improvements.

[] . . . []

Clearance of the site will occur in two phases, Phase I and Phase II. During Phase I all structures within the project area between N and O Streets will be demolished and/or relocated. During Phase II, all structures within the project area between M and N Streets will be demolished and/or relocated, with the exception of the retail component of the Lahvosh bakery. . . . Development of the site would also take place in two phases, however future development would be subject to the appropriate entitlements and the associated environmental assessment to evaluate the possible project related impacts upon the environment.

[] . . . []

Assembly and clearance of the 9.72 acres would facilitate the possible future development of offices, surface parking, a parking structure and a building for the State of California, Fifth District Court of Appeals [sic]. Of the 9.72 acres approximately 2.05 acres would be transferred to the State of California for the construction of the courthouse [plus a small parcel for a surface parking lot not at issue in this appeal].

As part of the Convention Center Redevelopment Project, which encompasses the project site, [RDA] completed an

Environmental Impact Report (EIR), presented to Council on November 2, 2001. The Council adopted the EIR per Resolution No. 2001-308. In addition, the site was previously assessed by [EIR] No. 10098 drafted for the Central Area Community Plan, and EIR No. 10085 drafted for the 1984 City of Fresno General Plan.

The September 24, 2002, Initial Study stated in part that the historic homes would have to be removed and proposed various options, as follows:

The project site is located within the historic boundaries of what was formerly the 60-block mixed use Old Armenian Town. . . . [] . . . [] The project site is located within the center of this remnant portion of the old district: that is, south of Ventura Avenue, between M and O Streets adjacent to State Route 41. As such, future development of the site will adversely impact up to nine (9) homes, a church, the Lahvosh Bakery, a restaurant, a repair garage, a few commercial buildings, and a fire station. [] . . . [] Five homes . . . are considered eligible historic resources and are slated to be relocated. Relocation of all historic resources stipulated in the mitigation measures will reduce the environmental impacts to a less than significant impact under CEQA.

The Initial Study identified four possible sites for relocation, including:

Option 1: The fire station parcel located on the southeast corner of M and Santa Clara Streets [orig. italics]

Option 1 would allow up to six (6) homes to be relocated within the project site boundaries. The proximity of the fire station parcel to the existing bakery and church would provide the opportunity to group the remaining historic resources of Old Armenian Town. This option would require that the applicant modify their plans to allow for the development of the fire station parcel with homes, rather than the five-story parking garage depicted on the conceptual site plan. (Italics added.)

The RECOMMENDATION of the Initial Study was:

Staff recommends that Option 1 be selected as the site for relocation. This site is recommended given that the city owns the property and because of its proximity to the bakery and Holy Trinity Armenian Apostolic Church. In addition, this site would allow for the city, RDA and the developer to move expeditiously on the necessary agreements, purchase, and clearance of the site.

[] . . . []

Mitigation Measures:

a. Historic resources to be moved from the Phase I/Appellate Courthouse Project Area (460 N Street, 459 O Street, 455 O Street, and 530 N Street) should be evaluated first to ensure that the structures can withstand relocation.

[] . . . []

f. Phase I historic properties shall be temporarily relocated for a period not to exceed one year from the date of initial relocation. . . .

[] . . . []

i. All resources (a. plus 461 N Street) shall ultimately be relocated to receiver lots at either (a) the firehouse parcel, (b) the former Emerson school site, or (c) the Holy Trinity Armenian Apostolic Church south parking lot.^[[3]] The homes preferably should be relocated together and clustered in a setting that retains the feeling and association to their Period of Significance.

On November 19, 2002, the Fresno City Council issued a Resolution adopting the MND and selecting the fire station site as the receiver site for the historic homes. The Resolution stated in part:

WHEREAS, the Planning and Development Department has received Environmental Assessment Application No. C-02-061 from Gunner and Andros requesting site clearance, acquisition, and transfer of land on approximately 9.72 acres of property located

on the south side of Ventura Street, between M and O Streets, adjacent to State Route 41; and

WHEREAS, the environmental assessment prepared for the project resulted in the issuance of a Mitigated Negative Declaration on September 24, 2002; . . .

[] . . . []

NOW THEREFORE, BE IT RESOLVED by the Council for the City of Fresno as follows:

1. That Council finds that in accordance with their own independent judgment, there is no substantial evidence in the record that Environmental Assessment No. C-02-061 may have a significant effect on the environment and hereby adopts the Mitigated Negative Declaration prepared for the project, denying the appeal filed against Environmental Assessment No. C-02-061.

2. That Council, after receiving the staff report and testimony, have determined that the following mitigation measures be implemented:

A. The following resources shall be relocated to the receiver site designated in C below: 460 N Street; 461 N Street; 459 O Street; 530 N Street; and 455 O Street.

B. The following resource shall be preserved at its present location: the Valley Lahvosh Bakery . . . ; and,

C. The fire station site shall be the designated receiver site for the resources identified in A above. (Italics added.)

Thus, whereas the Initial Study suggested as mitigation measures temporary relocation and then ultimate[] relocation to a receiver lot at the fire station site, with acknowledgement it would require the developer to modify its plans to delete the proposed parking structure from that site, the Citys Resolution adopted the fire station site as the receiver site as a MND mitigation measure, in effect requiring the developer to modify its plans.

However, the developer did not modify its plans but instead submitted its Phase II commercial development plan with a parking structure on the fire station site, just as the original conceptual plan had done.

An EIR for Phase II was prepared in 2003, in which the City/RDA treated the 2002 MND as a mere recommendation rather than an adopted mitigation measure, revisited the issue of a receiver site, and changed the receiver site to an industrial area on the other side of the freeway.

Thus, the 2003 INITIAL STUDY/NOTICE OF [EIR] PREPARATION for the OLD ARMENIAN TOWN PROJECT stated in part:

[RDA] is preparing an [EIR] for a project known as Old Armenian Town. Previously, [RDA] has certified a Program EIR for a variety of redevelopment projects, including an earlier predecessor to the Old Armenian Town project. Therefore, the present environmental document is considered a Subsequent EIR,

as that term is defined by Section 15162 of the CEQA Guidelines.

The map attached to the 2003 Initial Study shows exactly the same project area as the 2002 MND, i.e., the area bounded by Ventura Street, Freeway 41, M Street, and O Street.

The 2003 Initial Study described the Project similar to the description in the earlier proceedings, but added as specifics that the project consisted of the Fifth District Court of Appeal with two surface parking lots for the court; an office building north of Santa Clara Street, between N and O Streets, with a surface parking lot south of Santa Clara, west of N Street; an Armenian Cultural Center on the southwest corner of Ventura at M Street; a second office building north of Santa Clara, between M and O Streets; a parking structure located above the court surface parking lot, south of Santa Clara Street; a third office building south of Ventura between the court and the cultural center; and a parking structure above the Office Building No. 1 surface parking lot.

The 2003 Initial Study stated under the heading PREVIOUS ENVIRONMENTAL REVIEW COVERING THIS PROJECT:

On October 2, 2001, [RDA] certified Final EIR No. 2000-01 (SCH#2001071093) for the Convention Center Redevelopment Project Area (the RDA EIR). The Old Armenian Town Project (referred to in the RDA EIR as the Cornerstone Fresno project) was analyzed in the RDA EIR. In addition, on November 11, 2002, the

Fresno City Council certified Final Master [EIR] No. 10130 (SCH#2001071097) for the 2025 Fresno General Plan. Certain regional issues and focused issues pertaining to development in the downtown area were presented in that Master EIR. Finally, on November 19, 2002, the Fresno City Council adopted [MND] (EA No. C-02-061) for certain actions pertaining to the presently proposed Old Armenian Town project, including property acquisitions and conveyances of properties by [RDA]; relocation, vacation, removal and clearance of the project site; analysis of certain historic resources and related mitigation measures. [] These and other certified environmental documents will be used to focus the environmental analysis in this Subsequent EIR. (Italics added.)

The 2003 Initial Study also said, under a subheading Historic Resources, that [t]he Subsequent EIR will examine the potential impacts of the Old Armenian Town Project on historic resources, including particularly (but not limited to) feasibility (physical and financial) of an historic preservation mitigation measure (14.1), adopted as part of a previously adopted [MND] (EA No. C-02-061). This mitigation measure requires the relocation and restoration of five residential dwellings, to the fire station site located on the southeast corner of M and Santa Clara Streets. Other receiver sites will be considered in this analysis (see Exhibit 3 showing the general location for other potential receiver sites) and, if

appropriate, modification to the historic preservation mitigation measure(s) will be analyzed. The historic resources analysis will also analyze potential impacts to any other historic resources identified during the Notice of Preparation review period, if they have not been analyzed previously.

The draft EIR (DEIR) said, The previous [MND] . . . assumed [italics added] that the historic homes . . . would be relocated to [t]he fire station [site]. . . . [H]owever, [that site] has been planned for parking and parking structures to support the mixed-use development within the Project. The original site plan for what was then called Cornerstone Fresno in the Convention Center Redevelopment Project EIR showed parking in this area. The [RDA] has considered several offsite locations for moving and preserving the five historic houses . . . . The DEIR described as one option the fire station site, which would require elimination of the planned parking garage. However, the DEIR did not conclude such elimination would be infeasible. Rather, the DEIR said, If it were necessary to maintain this number of parking spaces in the area, it may be possible to add another level to [another] parking garage or to construct a parking structure in the surface parking lot located just outside of the Project Site boundary, to the east across M Street.

Part of the DEIR and final EIR (FEIR) was a report and Supplemental Historic Compatibility Report by Myra L. Frank of Jones & Stokes, which said in part that in November 2002, the city adopted a [MND] for certain actions pertaining to the current project, including property acquisitions and conveyances by [RDA] and clearance of the project site. Mitigation measures for direct impacts to certain historical resources were included in that MND and the EIR. [] . . . [] The [MND] requires that these five structures [the historic homes] be relocated from the Project Site to a receiver site. The preferred receiver site, according to the [MND] was the fire station site located on the southeast corner of M and Santa Clara Streets. Subsequently the DEIR identified three acceptable receiver sites for the relocation of five historical resources. They are as follows: [] - Any property depicted in the Acceptable Receiver Sites for Historic Resources graphic presented in Figure IVB-1 [] - The fire station property located at the southeast corner of M and Santa Clara streets [] - The area south of Freeway 41, and bounded by the following streets: Monterey Street; M Street; Van Ness Avenue, and Freeway 41.

Subsequent to that time, [RDA] has agreed to one of those sites. The site is located in the area south of Freeway 41.

The Myra Franks report went on to analyze the site south of the freeway and recommended the L Street Site as the final receiver site. This area south of the freeway has a preponderance of industrial uses. RDA indicated the historic homes could be used for nonresidential, commercial purposes.

RDAs Board of Directors adopted the FEIR, including the Myra Franks report as a mitigation measure, in Resolution No. 1655, on November 30, 2004. The Resolution stated in part, the Board hereby finds that with regard to the following effects, changes or alterations have been required in, or incorporated into, the Project which mitigate or avoid the significant effects on the environment [citation]. The Board, exercising their independent judgment, determines that such findings are supported by substantial evidence in the entire record before them. Those effects and the associated mitigation measures addressed by this finding are: [] . . . Historic Resources (HR-1 - HR-3) [in EIR Pages] IV-14 through IV-26 of Draft EIR/Section IV of Final EIR. The 19-page Myra Franks report constitutes Section IV of the FEIR.

Heritage Fresno thereafter filed the mandamus petition in the trial court. At present, the historic homes are being kept on the fire station site, awaiting outcome of this appeal.

On October 27, 2006, the trial court granted the writ petition, entered judgment and issued a peremptory writ of mandate ordering the City/RDA to set aside the approval of the November 30, 2004, EIR, as it provides for a change of mitigation measures, and continue to comply with the November 19, 2002, MND, requiring preservation of the five historic homes at their current location, the fire station site, as their final receiver site.

The trial court thereafter denied the City/RDAs motions for new trial and to vacate the judgment.

The City/RDA appeal from the judgment.

DISCUSSION

I. Standard of Review

Our review is the same as that of the trial court; we determine whether the administrative record demonstrates any legal error and whether it contains substantial evidence to support the agencys factual determinations. (Vineyard Area Citizens v. City of Ranch Cordova (2007) 40 Cal.4th 412, 427; Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 918.) Our review for legal error is de novo, and our review for substantial evidence indulges reasonable inferences from the evidence supporting the agencys determination and resolves evidentiary conflicts in favor of the agency. (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397.)

II. Change of Mitigation Measure Required a Reason

Under three separate headings, the City/RDA argue (1) the OAT Project discussed in the 2004 EIR was not the same project first proposed in 1999; (2) the trial court erred in applying section 21166^[4](which requires a subsequent EIR when changes are made to a project evaluated in an earlier EIR but does not mention an earlier MND); and (3) the 2004 EIR contains substantial evidence that the fire station site was not a feasible receiver site in light of changed circumstances. We shall conclude much of the City/RDAs arguments are misdirection and are unnecessary to affirmance of the judgment. The critical points are: (1) If the City/RDA wanted to change the previously-adopted MND designating the fire station site as the receiver site for the historic homes, they had to do so by a subsequent environmental review (either an EIR or at least an addendum) giving a statement of reasons for the change, supported by substantial evidence; (2) the record contains no statement of reasons for the change supported by substantial evidence. The 2004 EIRs explanation for choice of a different site does not constitute an explanation for why a change was necessary.

Preliminarily, we observe the City/RDA refer to the fire station site as a temporary storage site for the historic homes. It is true the 2002 Initial Study recommended temporary relocat[ion] for a period not to exceed one year, but it also recommended the historic homes should ultimately be relocated to receiver lots at the fire station site, a school site, or a church site. The Citys Resolution did not mention temporary storage, but instead said, The fire station site shall be the designated receiver site for the homes. Thus, the 2002 MND did not merely provide for temporary storage on the fire station site. Furthermore, the Initial Study expressly stated the developer would have to modify its plan to build a parking garage on the fire station site. The City/RDA offer no explanation as to why the developer would not need to modify its plan if that site were to be used merely as temporary storage. Moreover, the City/RDA in their appellate brief acknowledge the MND designated the fire station site as the final receiver site, and the 2004 EIR reconsidered the matter and changed the final receiver site. We accordingly conclude the 2002 MND designated the fire station site as the final receiver site.

CEQA requires a lead agency to take steps to ensure that any mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 358-359 (Napa Citizens); see also, 21081.6, subd. (b) [public agency shall provide that mitigation measures are fully enforceable through permit conditions, agreements, or other measures]; CEQA Guideline, 15126.4, subd. (a)(2) [mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments].)

This does not mean a mitigation measure can never be changed. The claim that once a mitigation measure is adopted it never can be deleted is inconsistent with the legislative recognition of the need to modify land use plans as circumstances change. It also is true that mistakes can be made and must be rectified, and that the vision of a regions citizens or its governing body may evolve over time. (Napa Citizens, supra, 91 Cal.App.4th 342, 358.) The Government Code recognizes this need and permits cities to amend specific land use plans. (Ibid., citing Gov. Code, 65453.^[5])

However, when an earlier adopted mitigation measure has been deleted, the deference provided to governing bodies with respect to land use planning decisions must be tempered by the presumption that the governing body adopted the mitigation measure in the first place only after due investigation and consideration. [Accordingly], a governing body must state a legitimate reason for deleting an earlier adopted mitigation measure, and must support that statement of reason with substantial evidence. If no legitimate reason for the deletion has been stated, or if the evidence does not support the governing bodys finding, the land use plan, as modified by the deletion or deletions, is invalid and cannot be enforced.

Assuming a valid reason for the deletion is stated, and the evidence supports the governing bodys finding that the stated reason exists, the land use plan, as modified, and the supporting EIR, should be subjected to the same scrutiny as would be given any land use plan and supporting EIR. The fact that a mitigation measure had been adopted in an earlier plan, but has been deleted, will be relevant to the question of the adequacy of the modified EIR, because it identifies a mitigation measure that the modified EIR then must address. The modified EIR also must address the decision to delete a mitigation measure. In other words, the measure cannot be deleted without a showing that it is infeasible. In addition, the deletion of an earlier adopted measure should be considered in reviewing any conclusion that the benefits of a project outweigh its unmitigated impact on the environment. (Napa Citizens, supra, 91 Cal.App.4th at p. 359.)

In the same vein, Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, held that a city violated CEQA when it issued demolition permits without requiring either compliance with predemolition conditions it placed on the redevelopment project, or conducting CEQA review of its decision that those conditions were inapplicable to the proposed demolition. (Id. at pp. 1504-1510.) The city could not simply declare the demolition a different project and disregard the mitigating conditions. (Ibid.)

Here, the City/RDA argue they complied with Lincoln Place, because the 2004 EIR undertook subsequent environmental review analyzing what to do with the historic homes. However, treating the matter as a new issue is not allowed. Lincoln Place concurred with Napa Citizens, supra, 91 Cal.App.4th 342, that a governing body must state a legitimate reason for deleting an earlier adopted mitigation measure, and must support that statement of reason with substantial evidence. (Lincoln Place, supra, 130 Cal.App.4th at p. 1509.)

The City/RDA argue that they did not delete a mitigation measure, but instead modified it. However, the modification in effect deleted the original mitigation measure and substituted a new one. Accordingly the argument is without merit.

A change in mitigation measure may require a subsequent EIR, or may in some cases be accomplished by an addendum.

Thus, CEQA Guideline section 15162 provides in part:

(a) When an EIR has been certified or a negative declaration adopted for a project [italics added], no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following:

(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously significant effects;

(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or

(3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:

(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;

(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;

(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or

(D) Mitigation measures of alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.

(b) If changes to a project or circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subdivision (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation.

Guideline section 15162 thus calls for some sort of further CEQA review if the lead agency wants to change a previously-adopted mitigation measure from a MND.

Regardless whether a change in a mitigation measure requires a formal subsequent EIR, it at least requires the lead agency to state a legitimate reason for making the change, supported by substantial evidence. Thus, Mani Brothers Real Estate Group v. City of Los Angeles, supra, 153 Cal.App.4th 1385, held a supplemental EIR was not necessary for changes made to mitigation measures, where the changes would have no new or more severe impacts, and the city made the changes in an addendum with a statement of reasons for the change, supported by substantial evidence. (Id. at pp. 1397-1403 [2005 addendum to 1989 EIR explained recent external factors obviating the need for prior mitigation measures].)

Here, the City/RDA conducted a subsequent EIR in which they changed the previously-adopted mitigation measure designating the fire station site as the receiver site for the historic homes, but they did not give a statement of reasons for the change or cite any evidence to justify the change. Instead, the 2004 EIR ignored the prior MND as a binding mitigation measure and treated it as a mere recommendation.

The City/RDA observe the 2004 EIR gave reasons for choosing the new site, south of the freeway. However, that is not the point. The point is that the 2004 EIR did not give reasons for changing the previously-adopted mitigation measure.

The City/RDA claim the 2004 OAT EIR contains substantial evidence that the fire station site was not a feasible receiver site for the historic homes in light of changed circumstances. The changed circumstance, according to the City/RDA, was because the OAT Project calls for the construction of a parking garage for the OAT Project was [sic] to be constructed on that site. The City/RDA say the 2004 EIR stated the historic homes were located on the exact location proposed for large parking structures; coexistence on the same site was not possible; and the 2004 EIR analyzed potential alternative sites.

However, those statements do not afford a statement of reasons for the change in mitigation measure, because the plans also called for a parking garage on that site at the time the mitigation measure was adopted in 2002. Indeed, the MND stated the developer would have to modify its plans. The developer did not modify its plans but instead submitted its Phase II commercial development plan with a parking structure on the fire station site, just as had been done in the original plan.

The City and RDA proceeded as if the MND had merely proposed the fire station site as a possibility, ignoring the fact that the MND expressly designated the fire station site as a mitigation measure. This is apparent in the City/RDAs description of the factual background in their appellate brief: As part of the process for the RDAs separate evaluation of the physical development of the [Phase II] commercial aspects of the OAT Project the RDA, acting as lead agency for the balance of the OAT Project activities, issued a Notice of Preparation (NOP) for a full [EIR] (the OAT EIR). [Citation.] In the NOP the RDA stated, among other things, that it had decided to evaluate other possible receiver sites for the Historic Structures that were in close proximity to the OAT Project and within the boundaries of Armenian Town. [Citation.] This was necessary because the actual Phase II Site Plan submitted by the Project developer did not modify their plan to allow the Historic Structures to remain on the Fire Station Site (as suggested [italics added] in the Initial Study to the MND [citation], but instead, proposed large parking structures on that site [citation]. The flaw in this position is that the suggestion in the Initial Study ceased to be a suggestion once it was adopted as a mitigation measure in the MND.

As a result of the City/RDAs myopic focus on the Initial Study and their disregard of the resulting Resolution adopting the MND, the City/RDAs subsequent CEQA review of Phase II included new consideration of the previously-settled question of where to put the historic homes. The City/RDA never justified its abandonment of the previously-adopted mitigation measure, and no substantial evidence supports the change.

In an apparent attempt to justify disregarding the MND, the City/RDA argue the OAT Project which was the subject of the 2004 OAT EIR was not the same project first proposed in 1999 and addressed in the MND. The City/RDA point out the 1999 plans were conceptual with regard to Phase II of the project, and at the time of the November 2002 MND, everyone anticipated that further environmental review would be required for Phase II. However, that does not render moot the November 2002 MND, and the City/RDA cite no authority for such a proposition. It is clear the 2001 EIR, the 2002 MND, and the 2004 EIR, all related to the same project. Indeed, the notice of preparation of the 2004 EIR specifically mentioned the 2001 EIR and the 2002 MND under the heading PREVIOUS ENVIRONMENTAL REVIEW COVERING THIS PROJECT. (Italics added.)

Although specifics of Phase II were conceptual in the 1999 plans, the critical aspect of the project never changed, i.e., the developers plan to build a parking structure on the fire station site. The City/RDA admit this indisputable fact but nevertheless argue, that single feature was part of dozens if not hundreds of other features to the project which obviously would undergo, and in retrospect in fact did undergo, many changes.

Notably, we see nothing in the record, and the City/RDA cite nothing in the record, offering an explanation by the developer to justify its insistence on using the fire station site for a parking structure despite the earlier MND designating that site for the historic homes and directing the developer to modify its plans.

If the City/RDA mean to suggest the 2002 MND was premature with respect to the fire station site, that ship has sailed, because the City/RDA acknowledge the 2002 MND was the subject of litigation which was resolved by a settlement agreement, and accordingly that MND is not being challenged and cannot be challenged in this litigation.

We conclude the City/RDA fail to show how the conceptual nature of the Phase II plans in 1999 render the later plans a new project that would allow the City/RDA and the developer to ignore the mitigation measure of the 2002 MND as to a site for which the plans have not changed.

We conclude the City/RDA fails to show grounds for reversal.

DISPOSITION

The judgment is affirmed. Respondents Heritage Fresno and Friends of Old Armenian Town shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).) Although real party in interest Old Armenian Town, LLC, is labeled a respondent on appeal, it is not entitled to recover costs because it has not filed an appellate brief, and its interests (as developer of the Old Armenian Town Project) are aligned with the losing appellants.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

HULL, J.

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^[1]Undesignated statutory references are to the Public Resources Code.

^[2]The Settlement Agreement called for a Resolution to be adopted (which it was) regarding the Armenian Evangelical Church (which is not at issue in this appeal) and a review of general policies regarding historic preservation.

^[3]The earlier Initial Study, dated September 10, 2002, added a fourth possible site, the L Street Historic District. The latter Initial Study on September 24, 2002, considered the L Street site but concluded it was not acceptable. This difference between the two initial studies does not matter because, as will appear, the MND adopted the fire station site.

^[4]Section 21166 provides: When an [EIR] has been prepared for a project pursuant to this division, no subsequent or supplemental [EIR] shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [] (a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]. [] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available.

^[5]Government Code section 65453, subdivision (a), provides, A specific plan shall be prepared, adopted, and amended in the same manner as a general plan, except that a specific plan may be adopted by resolution or by ordinance and may be amended as often as deemed necessary by the legislative body.