Creek
Neighbors v. Town of Los Gatos
Filed 12/24/12 Ross Creek Neighbors v. Town of Los Gatos CA6
OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
ROSS CREEK
NEIGHBORS et al,
Plaintiffs and Appellants,
v.
TOWN OF LOS GATOS et al.,
Defendants and Respondents;
LINDA COURT
PARTNERS LLC,
Real Party in Interest and Respondent.
No. H036927
(Santa Clara County
Super. Ct. No.
CV106461)
Appellants Ross Creek
Neighbors, Committee for Green Foothills, and Douglas V. Ownbey challenged the
certification of an environmental impact
report (EIR) and approval of a project to construct seven homes. The issues in the present appeal are whether
respondents
title="">[1]
Town of Los Gatos and its Town Council (Town) were required to circulate an
EIR and whether the final EIR fails as an informational document.
I. Factual and
Procedural Background
The
project involves the construction of seven single-family homes on 2.35 acres
within a developed residential neighborhood in Los Gatos.
along part of the northern edge of the project site. The project also involves the removal of
trees, the demolition of two existing structures, and the creation of a
protected riparian area of approximately 0.5 acre.
In
January 2007, ERAS Environmental, Inc. (ERAS) produced a “Phase I Environmental
Site Assessment.†One year later, the
Town approved a mitigated negative declaration for the project. Appellants then filed a petition for writ of
mandate in which they challenged the Town’ actions regarding the approval of
the project. Appellants argued, among
other things, that the Town failed to comply with the California Environmental
Quality Act (CEQA) when they issued a mitigated negative declaration and did
not prepare an EIR. The trial court
granted the petition and issued a peremptory writ of mandate ordering the Town
to refrain from further approval of the project until it certified an adequate
EIR.
In
response to the court order, the Town prepared an initial study in February
2009 and a draft EIR in January 2010.
After the draft EIR was circulated for public comment, the Town
responded to comments that were received.
On September
7, 2010, the Town certified the final EIR.
In
November 2010, the Town filed a return in which it requested that the writ be
discharged. On March 7, 2011, the trial
court issued an order in which it found that appellants’ “criticisms of the
range of project alternatives studied by the EIR, its consideration of
potential impacts on special status species (the dusky-footed woodrat),
analysis of hydrology and flooding impacts (including the determination of
issues such as the ‘top of the bank’), analysis of aesthetic impacts and the
project’s consistency with local plans and policies are instances where, having
acknowledged the disagreements on these issues in the EIR, the Town was
entitled to rely on the conclusions reached by its experts supported by
substantial evidence in the record. On
those issues, the return on the writ is adequate.†However, the trial court also found that the
Town’s “response in the Final EIR to the March 23, 2010
letter by the California Department of Toxic Substances Control (‘DTSC’)
commenting on the Draft EIR was inadequate.â€
Thus, the trial court denied the Town’s request to discharge the writ.
In
response to the March 2011 order, the Town asked ERAS to reevaluate its earlier
conclusion that no testing for pesticides was required. After its reevaluation, ERAS reached the same
conclusion. The Town then prepared the
Amendment to the final EIR.
On
April 19, 2011, the Town published notice in the local newspaper that it would be
holding a public hearing on May 2, 2011, regarding the
Amendment as well as the ratification and reaffirmance of the prior project
approvals. Following the public hearing,
the Town recertified the final EIR, and ratified and reaffirmed the prior
approval of the project.
On
May 5, 2011, the Town filed a second supplemental return to the writ of
mandate. Appellants filed their
opposition to the return. Following a
hearing on May 26, 2011, the trial court issued an order discharging the writ.
II. Discussion
A. Standard of
Review
“In reviewing an
agency’s compliance with CEQA in the course of its legislative or quasi-legislative
actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’ (Pub.
Resources Code, § 21168.5.) Such an abuse is established ‘if the agency
has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.’ [Citations.] [¶]
for legal error and
CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s
action, not the trial court’s decision; in that sense appellate judicial review
under CEQA is de novo. [Citations.]†(Vineyard
Area Citizens for Responsible Growth, Inc. v. City of
of these two types of error differs significantly: While we determine de novo whether the agency
has employed the correct procedures, ‘scrupulously enforce[ing] all
legislatively mandated CEQA requirements’ [citation], we accord greater
deference to the agency’s substantive factual conclusions.†(Id.
at p. 435.)
The lead agency’s “approval of an EIR ‘shall
be supported by substantial evidence in the
‘the reviewing court must resolve reasonable doubts in favor of the
administrative finding and decision.’ (
v. County of Los Angeles (1974) 11 Cal.3d 506, 514.) The Guidelines define ‘substantial evidence’
as ‘enough relevant information and reasonable inferences from this information
that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached.’
(Guidelines, § 15384, subd. (a).)â€
(Laurel Heights Improvement Assn.
v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 (
B. Circulation
of the Amendment to the Final EIR
After
the trial court found that the response to the comment by the California
Department of Toxic Substances Control (DTSC) was inadequate, the Town revised
its response in the Amendment.
Appellants contend that the Town was required to give notice and to
circulate the Amendment to the final EIR because the Amendment added
significant new information about hazardous pesticides and herbicides.
repeatedly recognized that the EIR is the ‘heart of CEQA.’ [Citations.]
‘Its purpose is to inform the public and its responsible officials of
the environmental consequences of their decisions before they are
made. Thus, the EIR “protects not only
the environment but also informed self-government.†[Citation.]’
[Citation.] To this end, public
participation is an ‘essential part of the CEQA process.’ [Citations.]â€
(Laurel Heights Improvement Assn.
v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn.
omitted (Laurel Heights II).)
“The
requirement of a detailed written response to comments helps to ensure that the
lead agency will fully consider the environmental consequences of a decision
before it is made, that the decision is well informed and open to public
scrutiny, and that public participation in the environmental review process is
meaningful. [Citation.]†(City
of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 904.)
section 15088.5, subd. (a)
in relevant part: “(a) A lead agency is
required to recirculate an EIR when significant new
information is added to the EIR after public notice is given of the
availability of the draft EIR for public review under [Guidelines] Section
15087 but before certification. As used
in this section, the term ‘information’ can include changes in the project or
environmental setting as well as additional data or
information. New information added to an
EIR is not ‘significant’ unless the EIR is changed in a way that deprives the
public of a meaningful opportunity to comment upon a substantial adverse
environmental effect of the project or a feasible way to mitigate or avoid such
an effect (including a feasible project alternative) that the project’s
proponents have declined to implement.â€
Examples of “significant new information†that require recirculation
include a disclosure showing: “(1) A new
significant environmental impact would result from the project or from a new
mitigation measure proposed to be implemented.
[¶] . . . [¶] (4) The draft EIR
was so fundamentally and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded. (Mountain
Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043.)†(Guidelines, § 15088.5, subd. (a).)
However, “[r]ecirculation is not required where the new information
added to the EIR merely clarifies or amplifies or makes insignificant
modifications in an adequate EIR.â€
(Guidelines, § 15088.5, subd. (b).) “[T]he lead agency’s
determination that a newly disclosed impact is not ‘significant’ so as to
warrant recirculation is reviewed only for support by substantial evidence. [Citation.]â€
(Vineyard,
1. Background
In
response to the draft EIR, the DTSC commented in relevant part: “The Project site was formerly used for agricultural purposes until the
mid 1970s and therefore pesticides and herbicides may have been used. The Initial Study for this project referenced
a Phase I Environmental Site Assessment Report prepared by ERAS Environmental,
Inc. in January 2007. The report
indicated that since these chemicals biodegrade over time and were not used
after 1974, the potential for these chemicals to occur on the site does not
appear to be a significant environmental concern. Pesticides and herbicides tend to be
persistent in the environment and do not significantly biodegrade over
time. Therefore, there is a potential
for these chemicals to be present at the Project site. However, there may be other factors such as
residential development of the area that may have caused the concentrations of
these chemicals in soil to be lower (i.e., due to mixing of soil during grading
activities). The level of residual
chemicals in the soil and/or groundwater is unknown unless an environmental
assessment is done. Therefore, DTSC
recommends that soil, and possibly groundwater, sampling be performed at this
site for chemicals from past agricultural operations. The sampling results should be discussed in
the EIR and any screening levels or criteria that are used in making a
determination whether detected contaminants are found at concentrations that
pose a risk to human health or the environment should be identified.â€
The Town’s response to this comment
stated: “2-1, Pesticide Contamination. The comment recommends that soil and
groundwater sampling for pesticides be conducted due to past agricultural uses
on the site. A Phase 1 Environmental
Assessment was conducted for the project (ERAS Environmental, June 2007), and
is summarized in the Initial Study (see pages 22-23 of Appendix A of the DEIR). The assessment indicated that the site had
been in residential use since early 1948 and part of the property had been used
as an orchard until approximately 1955.
The report concluded that no evidence was discovered during the
assessment to indicate that activities currently or historically conducted on
or near the property have contributed to soil or groundwater
contamination. The assessment did not
recommend soil or groundwater sampling or a Phase II investigation.†(Underscoring omitted.)
In declining to discharge the writ,
the trial court found that the Town’s response was “inadequate,†stating that
it was in “no position to evaluate, based on the Final EIR, whether pesticides
or herbicides are in fact present in the soil or water at the project site at
all or at concentrations that pose a risk to human health. . . . Despite the expenditure of much time and
effort by many people the Town’s failure to properly respond here to a
substantive comment by a public agency with specialized knowledge means that
the Final EIR fails as an informational document in this one respect. This is not a dispute over methodology. While it initially listed ‘[p]otential
pesticide contamination in soils from historical agricultural activities,’ as one
of several ‘areas of concern,’ the Draft EIR, in apparent reliance on the Initial
Study, did not identify the issue as even a potentially significant
environmental concern. When the Draft
EIR was circulated for comments the DTSC disagreed with the factual premise for
the Initial Study’s conclusion (the claimed rate of biodegradability of such
chemicals over time) and stated its position that such a conclusion could not
be reached without soil and possibly groundwater sampling being done at the
site. Rather than explain how and why
this was not necessary (assuming such a position could be explained and
supported by reference to evidence in the record) the Town simply restated the
original conclusion and as far as can be determined from the record never
addressed the issue again.â€
In response to the trial court’s
order, the Town requested that ERAS reevaluate its prior recommendation that no
soil or groundwater testing was required.
On April 13, 2011, ERAS drafted a letter stating that the 2007
ERAS report had reached conclusions regarding prior use of the site as an
orchard, any pesticides would have undergone significant degradation, the site
had been developed for residential purposes, and there were no documented
environmental impacts related to past use.
Following this reevaluation, an Amendment, which summarized the 2011 ERAS
letter, was made to the final EIR.
Prior to certifying the final EIR,
the Town found the revised response to the DTSC letter: (1) consisted of “a re-analysis of previously
available information,†and thus did not require either a subsequent EIR or a
supplement to the EIR (Guidelines, §§ 15162, 15163, 15164); (2) did not
contain “ ‘significant new
information’ †that required
recirculation of the final EIR since the “new information provides
clarification and additional support for the conclusion in the Final EIR that
soil or groundwater sampling for pesticide was not recommended or deemed
necessary†(Guidelines, § 15088.5); (3) did not result in a new
significant impact and did not result in a substantially more severe
significant impact that was analyzed in the final EIR since a significant
impact was not identified; (4) did not result in any changes or modifications
to the project; and (5) satisfied the CEQA requirements to provide “a good
faith, reasoned response, based on evidence in the record.†The Town also found that “further testing is
not suggested or required by the DTSC Guidance documents covering such
properties.â€
2. Amendment to the Final EIR
At issue is whether there was
Town’s determination that the Amendment did not add “significant new
information†that required circulation of the Amendment to the final EIR.
Laurel
Heights II, supra, 6 Cal.4th 1112
considered the issue of what constitutes “ ‘significant
new information’ †in a final EIR
and thus requires recirculation. (
“the final EIR will almost always contain information not included in the draft
EIR†given the CEQA statutory requirements of circulation of the draft EIR,
public comment, and response to these comments prior to certification of the
final EIR. (Id. at p. 1124.) In
response to public comment, relied on additional noise data to confirm its
prior conclusion in the draft EIR regarding noise levels at the project site,
but did not recirculate the final EIR. (
Heights II held that “the addition of new information to an EIR after the
close of the public comment period is not ‘significant’ unless the EIR is
changed in a way that deprives the public of a meaningful opportunity to
comment upon a substantial adverse environmental effect of the project
or a feasible way to mitigate or avoid such an effect (including a feasible
project alternative) that the project’s proponents have declined to
implement.†(Id. at p. 1129.) Laurel
Heights II concluded: “Regardless of what conclusions may
be appropriately drawn from these studies, we find that substantial evidence
supports the [lead agency’s] decision that the additional data do not
constitute ‘significant new information.’
These studies merely serve to amplify, at the public’s request, the
information found in the draft EIR. The
basis of the conclusion in both the draft and final EIR’s that mechanical noise
effects would be insignificant is the representation that any effects will be
mitigated to insignificance by appropriate choices of equipment and
installation measures. The new studies
do not alter this analysis in any way.
Substantial evidence thus supports the [lead agency’s] conclusion that
additional public comment is not required.â€
(Id. at p. 1137.)
Similarly, here, there is no
“significant new information†in the Amendment.
The Amendment includes more specific information about the historical
use of the project site to support the Town’s prior conclusion that soil
testing was not warranted. This
information is based on the aerial photographs referred to in the 2007 ERAS
report, which is summarized in the draft EIR and listed as a source reference.
provisions of the DTSC “Interim Guidance for Sampling Agricultural Propertiesâ€
(Guidance) and concludes that the project does not meet the criteria for
pesticide testing under the Guidance.
possibility that the orchard was irrigated and suggests that it was dry-farmed;
the eastern portion of the property received 2 to 4.5 feet of fill, thus
indicating significant soil disturbance and mixing; the western portion of the
property would have been disturbed annually by disking operations; and no
physical drainages or irrigation water conveyance features appear in the aerial
photographs between 1948 and 1956.
name="_ftnref8" title="">[8] Since these findings were based on the
information in the 2007 ERAS report, there was substantial evidence to support
the Town’s conclusion that circulation of the Amendment to the final EIR was
not required under CEQA.
name="_ftnref9" title="">[9]
Appellants argue, however, that the
Town’s decision to analyze the Guidance only in the Amendment deprived the
public of the opportunity to refute the Town’s position. They claim that both the Guidance itself and
additional information establish that the Town discounted a significant
environmental impact.
Appellants contend that Guidance section 2.1
establishes that the Guidance applies to the project site: Section 2.1 states: “This guidance is specific to agricultural
properties where pesticides and/or fertilizers were presumably applied uniformly, for agricultural purposes consistent
with normal application practices†and “applies to proposed new and/or expanded
school sites or other project where new land use could result in increased
human exposure, especially residential use.â€
(Italics added.) However, though
the property was once used for agricultural purposes, there is nothing in the
record to support a presumption that pesticides were applied for this
purpose. Moreover, the Preface to the
Guidance states in relevant part: “This
guidance does not apply to disturbed land, such as land that has been graded in
preparation for construction, . . . or any other activity
that would redistribute or impact the soil, other than normal agricultural
practices, such as disking and plowing.â€
(Underscore omitted.) Here, there
was significant grading and filling of eastern portion of the property, and the
western portion of the property has been disked annually. Thus, the pesticide testing requirements of
the Guidance were inapplicable.
In challenging the Amendment’s conclusion
regarding dry-farming, appellants rely on section 2.3.2 of the Guidance. This section states in relevant part: “For properties where there is
limited sampling may be conducted at a rate of four discrete samples per site,
with one sample collected in each quadrant†and “[i]f it cannot be clearly
shown that irrigation did not take place and pesticides were not applied,
limited sampling for organochlorine pesticides (OCPs) and arsenic may be
necessary.†(Italics added.) Here, the Amendment concluded that it was
“very likely†that the property was dry-farmed based on the slope of the site,
the lack of drainage or irrigation conveyance features in the aerial photos,
and the agricultural practices in Santa Clara County at that time. Thus, since the evidence did not reveal any
uncertainty on this issue, test sampling was not necessary under section 2.3.2.
Appellants argue, however, that “the site’s
perennial creek provides a constant source of water to breed agricultural pests
regardless of the farming technique used.â€
There is no evidence in the record to support their argument, and this
court may not take judicial notice of this purported fact. (Evid. Code, § 452, subd. (h).) Appellants also claim that there is evidence
in the record that suggests that arsenic may have been used on the site. They rely on a statement by Pauline Sprock,
who identified herself as one of the neighbors and spoke in opposition to the
project at the hearing on the final EIR.
She stated: “I wanted to know if
they did a soil test for arsenic o[r] lead, as this was a former orchard, and
that’s what the old-timers used to spray with all the time.†Sprock did not indicate the basis for her
statement, and the Town was entitled to discount her unsubstantiated
opinion. (Pub. Resources Code, § 21080,
subd. (e)(2).) Appellants also rely on
their counsel’s statement in his declaration that, based on conversations with
Henry Chiu and Mark Piros of the DTSC, the “DTSC is aware of sites in the South
Bay w[h]ere farmers used arsenic and DDT.â€
Since this declaration was not part of the record before the Town, it
was inadmissible. (See
Court (1995) 9 Cal.4th 559, 571 (Western
States).) Moreover, this evidence
was hearsay, and even assuming that it was admissible, it did not establish
where and when such pesticides were used, or that pesticides were used on the
project site.
Appellants’ reliance on
Jose (2006) 141 Cal.App.4th 1336 (Preservation
Action Council) is misplaced. In
involved the demolition of a historic building and the construction of a
162,000-square-foot warehouse. (
the historic building, and brought a writ challenging the city’s approval of
the project. (Id. at p. 1342.) The trial
court found: there was insufficient
evidence to support the city’s rejection of an alternative that reduced the
size of the building; this alternative was “
‘substantially different from’ â€
the alternatives that were analyzed in the final EIR and there was insufficient
evidence that it was infeasible; and the city had failed to adequately respond
to the opponent’s comments. (
violated CEQA by failing to ensure that the FEIR adequately analyzed the
potentially feasible and environmentally superior reduced-size alternative and
failing to make a specific finding, based on substantial evidence, regarding
the feasibility of the reduced-size alternative.†(Id.
at p. 1357.) Regarding the remedy,
to remedy its inadequate analysis of the reduced-size alternative will
necessarily require recirculation of this section of the amended DEIR. ‘If, subsequent to the period of public and
interagency review, the lead agency adds “significant new information†to an
notice and must “recirculate†the revised EIR, or portions thereof, for
additional commentary and consultation.
[Citations.] The revised
environmental document must be subjected to the same “ ‘critical evaluation that occurs in the draft stage,’ †so that the public is not denied an “ ‘ “opportunity to test, assess, and
evaluate the data and make an informed judgment as to the validity of the
conclusions to be drawn therefrom.†’ †’ [Citations.]
Here, the public should have had the opportunity to assess and comment
upon an adequate analysis of the reduced-size alternative.†(Id.
at pp. 1357-1358.) With respect to the
city’s responses to comments, the real parties in interest conceded that “the
sufficiency of the responses depends on the adequacy of the amended DEIR’s
analysis of the design alternatives.†(
In Preservation Action Council, the new information related to the
potential feasibility of an environmentally superior alternative, and thus the
information was significant. Here,
however, the information included in the Amendment did not reveal “a
substantial adverse environmental effect of the project†or “[a] feasible
project alternative.†(Guidelines, §
15088.5, subd. (a).)
In sum, there was substantial evidence to
support the Town’s determination that the final EIR did not add significant new
information requiring recirculation.
Relying on Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043 (Mountain Lion Coalition), appellants next contend that the Town was
required to circulate the Amendment to the final EIR because the public never
had the opportunity to review and comment on an adequate EIR. In
Fish and Game Commission adopted regulations that allowed the hunting of
mountain lions during the 1987 season. (
trial court for a writ of mandate that suspended the regulations and required
the commission to comply with CEQA by preparing and circulating an
environmental impact document (EID). (
return to the writ in which it claimed that it had fully complied with the
trial court’s directive because it had circulated a four-page cumulative impact
analysis. (Ibid.) This document
concluded that the mountain lion hunt would not have any adverse impacts on the
mountain lion population. (
After the respondents challenged the cumulative impact analysis on
numerous grounds, the trial court ruled that the appellant could not proceed
with the mountain lion hunt until it had prepared and circulated a legally
sufficient cumulative impacts analysis.
(Id. at pp. 1046-1047.) The trial court also specified how the
appellants were to conduct this analysis.
(Id. at pp. 1047-1048.) Rather than follow the trial court’s
direction, the appellant proposed new regulations that authorized a mountain
lion hunt for the 1988 season, which were the same as the 1987 regulations. (Id.
at p. 1048.) The appellant prepared a
draft EID, circulated it for comment, and after receiving public comment,
prepared and adopted a final EID. (
The trial court “examined the draft EID which was circulated for public
review, and found its cumulative impact analysis inadequate because it failed
to adequately address, or to address at all, several subjects that were
specified in and required by the court’s earlier order. The court did not reach the question of
whether the final EID, which contained more complete analysis and
documentation, cured some of the defects found in the draft EID because the
cumulative impact analysis in the final EID had not been circulated for public review.†(Id.
at p. 1049.)
The Court of Appeal in Mountain Lion Coalition evaluated the 1988 EID in terms of the
trial court’s criticisms of the 1987 EID.
“Given the unambiguous nature of the court’s order, the draft EID that
was circulated to the public to inform them of the environmental consequences
of the proposed 1988 mountain lion hunt was woefully inadequate.†(Mountain
Lion Coalition, supra, 214
Cal.App.3d at p. 1050.) The court did
“not reach the question of whether the final EID, which was not considered by
the trial court, clears up some of the deficiencies of the draft.†(Id.
at p. 1052.) The court also
observed: “If we were to allow the
deficient analysis in the draft EID to be bolstered by a document that was
never circulated for public comment, we would not only be allowing appellants
to follow a procedure which deviated substantially from the terms of the writ,
but we would be subverting the important public purposes of CEQA. . . . To evaluate the draft EID in conjunction with
the final EID in this case would only countenance the practice of releasing a
report for public consumption that hedges on important environmental issues
while deferring a more detailed analysis to the final EID that is insulated
from public review.†(
In Laurel
Heights II, the California Supreme Court cited Mountain Lion Coalition for the proposition that “new information
that demonstrates that an EIR commented upon by the public was so fundamentally
and basically inadequate or conclusory in nature that public comment was in
effect meaningless triggers recirculation . . . .†(Laurel
Heights II, supra, 6 Cal.4th at
p. 1130.) Laurel Heights II thus summarized Mountain Lion Coalition as a case in which “a ‘woefully inadequate’
draft EIR was found to have deprived the public of its opportunity to comment
upon the resumption of sport hunting of mountain lions.†(Id.
at p. 1131.)
The present case is distinguishable from
an informational document. The Town
circulated a 290-page draft EIR. The
final EIR, which included comments to the draft EIR and the Town’s responses, added
255 pages. As discussed,
addressed the significant environmental issues and provided the public with the
opportunity to comment on these issues.
The only portion of the final EIR that was found inadequate was the
Town’s response to one comment, and, as previously discussed, the Town’s
revised response or Amendment did not add significant new information. Thus, Mountain
Lion Coalition is not controlling.
C. Consideration of the Final EIR Before
Approval of the Project
Appellants also
contend that the Town did not consider the final EIR before approving the
project and improperly approved the subdivision application and the planned
development zoning ordinance No. 2193 (Ordinance No. 2193) before it reviewed
and considered the final EIR.
Here, the Town
approved the subdivision application in October 2010 and Ordinance No. 2193 in
September 2010.
After the trial
court denied the Town’s request to discharge the writ in March 2011, it issued
a “NOTICE†on April 4, 2011. This notice
stated that the trial court had conferred with the parties by telephone
conference call and considered the parties’ letter briefs. Relying on Public Resources Code section
21168, the Town argued that the court was not required to order that the prior
findings or approvals be voided. The
Town contended that the trial court could allow the Town “to re-ratify its
decision (if it chooses to do so) without going through the process of vacating
its former PD Zoning approval and having the matter re-heard by the Planning
Commission and Town Council, [and that this procedure] would accomplish the
goal of requiring the Town to undertake only such activities as are required to
cure the non-compliance with CEQA.â€
Appellants, however, argued that “premising a Project approval upon a
faulty EIR is a violation of CEQA, [and] thus the current Project approvals
must be set aside until the Town complies with CEQA.†Citing Protect
the Historic Amador Waterways v. Amador Waterway Agency (2004) 116
Cal.App.4th 1099 (Amador Waterways),
the trial court concluded that “[the Town] need only correct the deficiency in
the Environmental Impact Report which the court identified.†Amador
Waterways held that the EIR did not set forth an adequate statement of
reasons explaining why the project would not have a significant effect on local
streams. (Id. at p. 1103.) The Court
of Appeal also stated that its “conclusion does not mean the Agency is required
to start the EIR process anew. Rather,
the Agency need only correct the deficiency in the EIR that we have identified
before considering recertification of the EIR.â€
(Id. at p. 1112.)
Here, the Town
complied with the trial court’s notice.
The Town “recertifie[d] the Final EIR, as amended, finding that it has
been completed in compliance with CEQA,†and “reviewed and considered the
information contained in the Final EIR, as amended, prior to ratifying and
reaffirming the prior approval†of the project.
Appellants,
however, rely on No Oil, Inc. v. Los Angeles (1974) 13 Cal.3d 68 (
in Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 569-573. No Oil
is factually distinguishable. In that
case, the city enacted three ordinances, which approved an oil drilling
project, without preparing an EIR. (
challenging the ordinances, the city argued an EIR was not necessary and
supported its contention by submitting declarations from the eight council
members who voted for the ordinances. (
the project would not have a significant effect on the environment. (Ibid.) After the trial court remanded the matter for
clarification, the council adopted a resolution stating that “at the time it
adopted the subject three ordinances it believed, and now specifically finds,
that such ordinances and the restricted activities permitted thereby would have
no significant effect on the environment.â€
(Id. at p. 78.) The California Supreme Court held that “a
determination that a project does not require an EIR, when that project is not
exempt from environmental study under the act or guidelines, must take the form
of a written Negative Declaration.†(
also stated: “This is not a case in
which an agency rendered ambiguous findings concerning the environmental effect
of the project, but a case of total absence of any written determination on the
matter; for all the record reveals, the council may have simply ignored CEQA
and enacted the ordinance in the same manner to which it was accustomed before
CEQA was enacted.†(Id. at p. 81.) Here, the
Town certified a final EIR, which was found inadequate only with respect to the
Town’s response to the DTSC’s comment, prior to adopting Ordinance No. 2193 and
approving the subdivision application.
Thus, No Oil is not
controlling.
Appellants contend that the final EIR fails
as an informational document because it does not adequately analyze: (1) the impacts to and mitigation for the San
Francisco dusky-footed woodrat (woodrat); (2) hydrology and flooding impacts;
and (3) project alternatives.
name="_ftnref12" title="">[12]
Mitigation for the Woodrat
Appellants argue that the final EIR fails to
adequately analyze the impacts to and the mitigation for the woodrat.
The woodrat is considered a species of
special concern by the Department of Fish and Game (DFG). In 2007, the Town’s consultants initially
concluded that they did not expect to find woodrats within the project
area. However, in 2009, the Town’s
consultants observed an active woodrat nest in this area. In response to a comment, the Town noted that
a second active woodrat nest was observed “outside of the project area boundary
to the southwest. . . . [A]dditional
[woodrat] structures may be present at the time that project activities are
initiated,†and the “existing nest/structure lies within the riparian habitat
where no disturbance will occur.â€
Appellants argue that the final EIR is
inadequate because it fails to include information or analysis about the second
woodrat nest or any additional woodrat nests.
The purpose of an EIR is to identify a
project’s significant effects on the environment and describe how those
significant effects can be mitigated or avoided. (Pub. Resources Code, § 21002.1, subd.
(a).) “In evaluating the significance of
the environmental effect of a project, the lead agency shall consider . . . reasonably
foreseeable indirect physical changes in the environment which may be caused by
the project. [¶] . . . [¶] (2) An
indirect physical change in the environment is a physical change in the
environment which is not immediately related to the project, but which is
caused indirectly by the project. . . .
[¶] (3) An indirect physical change is to be
considered only if that change is a reasonably foreseeable impact which may be
caused by the project. A change which is
speculative or unlikely to occur is not reasonably foreseeable.†(Guidelines, § 15064, subd. (d).)
The potentially significant impact to the
woodrat is described as follows:
“Clearing activities may result in destruction of refuse sites, such as
woody debris, fallen logs, or dense vegetation, or entrap or kill woodrats
within the project area.†Thus, the
draft EIR states that mitigation measures include requiring a qualified
biologist to examine the project area before and during any ground disturbing
activities. In addition, if a woodrat
nest is encountered in the work area, a protection exclusion zone would be
established around any nest before any ground-disturbing activities are
initiated. It also states that if a
woodrat is encountered and the woodrat does not voluntarily leave the work
area, a biological monitor with the appropriate permits would relocate the
animal to a release site approved by the DFG.
Since there is no evidence in the record that the project will involve
any clearing activities outside of the project area, any indirect effects are
speculative. Accordingly, the Town was
not required to analyze mitigation measures for any woodrat nests located
outside the project area.
Appellants also argue that the Town relies on
the DFG’s delineation of the western drip line of the project site as part of
the protected riparian zone for the woodrat, but when this delineation
“conflicted with where the developer wanted to place houses, the Town
concluded, without explanation, that
[DFG] was ‘mistaken[]’ in its determination.â€
(Italics added.) The record does
not support their argument.
In response to a comment about impacts to the
woodrat, the Town states that “[t]he trees with the observed woodrat nest are
included in the riparian habitat and will not be removed. Similarly other trees in the riparian habitat
will be retained, including the referenced blue oak. The DEIR mitigation measures call for
preconstruction surveys to identify any future nest/structures prior to any
construction activities, particularly vegetation, woody debris, or tree removal
or other ground disturbing activities.
Protective exclusion zones will be established around the woodrat
nest/structure located within the site and any nest identified during future
surveys. Based on conversations with D.
Johnston of CDFG (2010), the protective exclusion zone for any woodrat
nest/structures should follow the riparian dripline and associated
buffer.†Thus, in 2010, the Town defined
the protection exclusion zone for nests to follow the riparian dripline and associated
buffer.
Appellants have taken a statement out of
context to support their argument that the Town concluded that DFG’s definition
of the riparian zone was mistaken. In
response to a comment regarding earlier maps of the riparian zone, the Town
stated: “The comment questions the
demarcation of the riparian canopy along the western boundary as it differs
from maps that were prepared for the project in 2007. The mixed evergreen forest on the western
boundary of the project site was previously mistakenly identified as riparian
habitat, likely due to the contiguous nature of the canopy. However, riparian habitat is determined by
the hydrologic influence of the stream on the vegetation as well as by the
vegetation type. In the case of the
western boundary, the transition in slope marks the boundary between the mixed
evergreen and riparian habitat types.â€
That the Town concluded that the 2007 maps were mistaken in showing the
demarcation of the riparian canopy does not mean that the Town rejected the DFG’s
delineation of the protective exclusion zone in 2010.
Relying on an e-mail from Johnston, a
biologist at the DFG, appellants next argue that woodrat relocation would not
mitigate any potential loss of the species.
We disagree with appellants’ interpretation of Johnston’s e-mail. The final EIR states that the “[m]ortality of
woodrats resulting from development projects has been associated with attempts
to relocate woodrats and their houses beyond the immediate vicinity of the
current houses/nest structures (Gerber, et al. 2003 and Johnston, personal
communication, 2010).†In his e-mail,
Johnston stated that “[r]elocation is not an option . . . .†However, the mitigation measures do not
include relocation of woodrats and their nests from the protective exclusion
zone. A woodrat, not its nest, would
only be relocated if the woodrat does not voluntarily leave the work area. Johnson did not state that these mitigation
measures would be ineffective.
Appellants next challenge the mitigation
measure to “[i]nstall a protective exclusion zone around any woodrat nest found
within the project area . . . .†They
claim that “[t]here is no evidence that fencing in live animals is feasible or
even humane mitigation.â€
Here, EcoSystems West Consulting Group (EcoSystems)
provided an independent analysis of impacts and mitigation measures. As previously discussed, the EIR states that
ground disturbing activities would impact the woodrats on the project site. Mitigation measures include requiring a
qualified biologist to examine the project area before and during any ground
disturbing activities, and, if a woodrat nest is encountered in the work area,
a protection exclusion zone would be established around any nest before any
ground disturbing activities are initiated.
Appellants provided no evidence that these mitigation measures are not
feasible. EcoSystems provided its
expertise in drafting the mitigation measures, and the Town may defer to its
experts’ conclusions even though appellants disagree with those conclusions. (Laurel
Heights I, supra, 47 Cal.3d at
pp. 392-393.) Thus, there is sufficient “ ‘relevant information and reasonable
inferences from this information that a fair argument [could] be made to
support [the] conclusion’ †that
these mitigation measures are adequate.
(Id. at p. 393.)
Impacts
Appellants next contend that the EIR has an
“[i]nadequate [a]nalysis of [h]ydrology and [f]looding [i]mpacts†because it
used an “outdated top-of-bank delineation†and “does not offer a ‘good faith,
reasoned analysis in response’ to comments regarding the top of bank
delineation.â€
Robert Curry, one of appellants’ experts,
states that “[c]orrect identification of the top of bank is important because
it marks the historic channel-forming feature and thus provides an indicator of
areas subject to flood disturbance.â€
Curry and two other experts conclude that the delineation of the top of
bank in the EIR is incorrect because it does not include the active
floodplain. They further indicate that
the top of bank delineated in the EIR does not meet the definition of the
Guidelines and Standards for Land Use Near Streams (Stream Guidelines), which
was adopted by the Santa Clara Valley Water Resources Protection Collaborative
(Collaborative) in 2007. The Town is a
member of the Collaborative. The Stream
Guidelines define the top of bank to include “the active channel, active
floodplain, and their associated banks.â€
define a “20 to 25-foot setback†for new construction for “slope stability
purposes.â€
The EIR analyzes flood hazards and concludes
that no mitigation measures are required because no structures would be located
within the 100-year floodplain of Ross Creek.
This analysis is based on the FEMA Flood Insurance Rate Map and the
Schaaf & Wheeler hydraulic analysis that was prepared for the project. The EIR also acknowledges comments “regarding
the ‘top of bank’ definition and delineation on project maps,†and explains
that “[t]he ‘top of bank’ was identified on the project plans by the project
engineers, and this demarcation appears to be the top of the active channel
bank.†In response to the comment that
“the ‘top of bank’ is not consistent with the [Stream Guidelines],†the EIR
states that “the top-of-bank definition is relevant where setbacks for slope
stability are an issue, but review of the definition and standard as applied to
the project site with [the Collaborative] found that the project is consistent
with recommended setbacks for slope stability.
The comment cites the ‘Town’s 25 foot bank protection setback zone,’
which appears to be the 20-25 foot setback recommendation in the Stream
Guidelines related to slope stability, and the project is consistent with this
guideline as discussed in Response to Comment 6-16.â€
The response to comment 6-16 sets forth the
definition of “top of bank†and recognizes that it includes the “active
floodplain.†The response further states
that “these definitions and interpretations were reviewed and confirmed with
the Santa Clara Valley Water District staff (Haggerty, personal communication,
May 2010). Nonetheless, the proposed
structures are set back 20-70 feet from the outer edge of the mapped 100-year
floodplain, and not 10 feet as suggested by the comment . . . .†Thus, though the EIR includes a definition of
top of bank in the project plans that differ from the Stream Guidelines, the
project is consistent with the Stream Guidelines.
Appellants argue that the EIR fails to
analyze a reasonable range of alternatives to the project because it does not
consider either a three- or four-home development that sites all of the homes
on the opposite side of the street from the creek or a one-home development
that complies with the Los Gatos Tree Protection Ordinance (Tree Ordinance).
“ ‘ “CEQA establishes no categorical
legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts,
which in turn must be reviewed in light of the statutory purpose.†’
[Citation.] ‘An EIR shall
describe a range of reasonable alternatives to the project, or to the location
of the project, which would
feasibly attain most of the basic objectives of the project but would avoid or
substantially lessen any of the significant effects of the project, and
evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable
alternative to a project. Rather it must
consider a reasonable range of potentially feasible alternatives that will
foster informed decisionmaking and public participation. An EIR is not required to consider
alternatives which are infeasible. The
lead agency is responsible for selecting a range of project alternatives for
examination and must publicly disclose its reasoning for selecting those
alternatives. There is no ironclad rule
governing the nature or scope of the alternatives to be discussed other than
the rule of reason.’ (CEQA Guidelines, §
15126.6, subd. (a).)†(
Watsonville (2010) 183 Cal.App.4th 1059, 1086.)
project objectives: (1) development of
seven single-family residences; (2) creation of new housing which is designed
to fit the site contours; (3) protection and retention of riparian open space;
(4) construction of housing with green building techniques; and (5)
implementation of riparian restoration that includes replacing non-native
species with native vegetation.
The
EIR finds the following significant project impacts: (1) disturbance to the woodrat; (2)
disturbance to bats if they are present during construction; (3) removal of 31
trees subject to protection under Town ordinances and inadvertent damage to
other trees during grading and construction; (4) grading and construction that
could result in erosion and sedimentation in Ross Creek; (5) deterioration of
air quality as a result of construction emissions; (6) proposed residences
could be subject to soil constraints without appropriate soil preparation and
engineering measures; and (7) construction noise.
The
EIR considers and declines to further analyze one-home and two-home
alternatives for two reasons. These
alternatives fail to meet the project objective of developing seven homes. They would also result in lot sizes that
would be significantly greater than what is allowed under the Town’s general
plan, which permits up to five units per acre.
The
EIR next considers “Alternative 1†or the “No Project†alternative. Under this alternative, the site would remain
vacant and none of the impacts would occur.
However, since the site would remain designated for residential uses, a
different land use application with potential environmental impacts could be
proposed and considered sometime in the future.
Moreover, while the riparian habitat would remain undisturbed,
Alternative 1 would not provide the riparian enhancement plan that is part of
this project and the riparian corridor dedications would not be made to the
Town or the Santa Clara Valley Water District.
The “No Project†alternative would meet only one project goal, that is,
the riparian corridor would remain undisturbed.
The
EIR also considers “Alternative 2†or the “Modified Design with Reduction of
One Lot†alternative, which would eliminate either proposed Lot 1 or Lot 2 and
the two lots would be sited in the area currently proposed for Lots 1 through
3. Under Alternative 2, the footprints
of the homes would be sited five to 10 feet further from the riparian dripline
and an additional three trees (trees 61, 19, and 20) would be retained. The potential disturbance to the woodrat
during construction would remain a significant impact, though the severity of
this impact might be slightly reduced due to the increased buffer. The disturbance to bats if they are present
during construction would remain a significant impact because only three trees
could be retained under this alternative.
The potential damage to retained trees would remain the same. The significant impacts to hydrology and
water quality, air quality, geology and soils, and noise would be similar to
those of the proposed project.
Alternative 2 would only partially meet the objective to develop seven
homes.
In
addition, the EIR considers “Alternative 3†or the “Reduced Density Reduction
of Two Lots†alternative, which would remove two lots and site three lots in
the area currently proposed for Lots 1 through 5. The footprints of the homes on current Lots
1, 2, and 4 would then be sited five to 10 feet further away from the riparian
dripline. The redesign could result in
retaining at least three trees (trees 61, 19, and 20) as well as a “few
additional trees.†Alternative 3 would
result in the same impacts as with Alternative 2, though a few additional trees
would be retained. Alternative 3 would
partially meet the project objective to develop seven homes, but it would meet
all other project objectives.
The
EIR next considers which alternative is the environmentally superior
alternative among the other alternatives.
It reasons that neither Alternative 2 nor 3 “would eliminate the
significant impacts as most are related to construction disturbances. Potential impacts to special status species
(woodrat) would be slightly reduced in Alternatives 2 and 3 over the proposed
project.†The EIR concludes that
Alternative 2 is the environmentally superior alternative because it would
result in some reduction in the severity of significant impacts and meet most
project objectives.
Most
of the significant impacts, that is, disturbance to woodrats and bats,
inadvertent damage to trees, erosion, air quality, soils constraints, and
noise, are related to construction.
Thus, these impacts would only be slightly reduced under a three- or
four-home alternative. This alternative
would not meet the project objective of constructing seven homes, though more
trees would be retained. Under the rule
of reason, the EIR adequately describes a range of alternatives to the project
that would attain most of the project objectives, but would substantially lessen
the project’s significant effects.
Appellants
next contend that the EIR is inadequate because it fails to analyze an
alternative that complies with the Tree Ordinance (§ 29.10.0950 et seq.). Implicit in their contention is that the
project does not comply with the Tree Ordinance. Respondents counter that collateral estoppel
precludes litigation of the Town’s compliance with this ordinance.
“The
doctrine [of res judicata] has a double aspect, a prior judgment is a bar in a
new action on the same cause of action, and in a new action on a different
cause of action the former judgment is a collateral
the former action.†(
Cal.App.3d 844, 851.) This first aspect
of the doctrine is often referred to as claim preclusion or res judicata while
the second aspect of the doctrine is referred to as issue preclusion or
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, fn. 7.) The present case involves the issue
preclusion aspect of res judicata.
“
relitigation of issues argued and decided in prior proceedings. [Citation.]
Traditionally, we have applied the doctrine only if several threshold
requirements are fulfilled. First, the
issue sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second,
this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided
in the former proceeding. Fourth, the
decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former
proceeding. [Citations.]†(Lucido
v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted.) Once the threshold requirements are met,
courts consider whether application of issue preclusion will further the public
policies of “preservation of the integrity of the judicial system, promotion of
judicial economy, and protection of litigants from harassment by vexatious
litigation.†(Id. at p. 343.)
Here,
the threshold requirements of Lucido
have been met as to the issue of whether the project complies with the Tree
Ordinance. Appellants contend that the
EIR failed to analyze an alternative that complied with the Tree Ordinance,
thus assuming that the project does not comply with the Tree Ordinance. This issue is identical to that in
appellants’ petition for writ of mandamus to require the Town to set aside its
adoption of Ordinance No. 2193, which rezoned the project site. Appellants argued that Ordinance No. 2193
violated various provisions of the Town Code, including the Tree Ordinance.
The
next Lucido requirement involves a
determination of whether the issue was actually litigated in the prior
proceeding. “ ‘An issue is actually litigated “[w]hen [it] is
otherwise, and is submitted for determination, and is determined . . . .†’ [Citations.]â€
(Castillo
v. City of Los Angeles (2001) 92 Cal.App.4th 477,
482 (Castillo).) Here, appellants filed briefing and a
hearing was held on the issue of whether the Town’s
approval of rezoning for the project site violated, among other things, the
Tree Ordinance. The trial court concluded that “[t]he record
viewed as a whole contains sufficient evidence that the Town correctly applied
its local codes,†and entered judgment in favor of the Town. Thus, the record
establishes that the issue was previously litigated.
also requires “that the issue was ‘necessarily decided,’ [which] has been
interpreted to mean that the issue was not ‘
“entirely unnecessary†’ to
the judgment in the prior proceeding.
[Citation.]†(
Here, the trial court rejected appellants’ contention that the Town’s
rezoning of the project site violated the Tree Ordinance, and thus the issue
was necessarily decided in the prior proceeding.
The prior judgment was also final
and on the merits. Appellants filed a notice of
appeal from the judgment, but later filed a notice abandoning their
appeal. The
decision was on the merits because it followed a “ ‘full hearing’ in which ‘
“the substance of the claim [was] tried and determined.†’ [Citations.]†(Castillo,
supra, 92 Cal.App.4th at
p. 483.)
As to
the final Lucido requirement, appellants, the parties against whom
preclusion is sought, are parties who participated in both proceedings.
Turning
to the public policy considerations, we conclude that they have been met. First,
application of issue preclusion in the present case would preserve the
integrity of the judicial system. If
appellants were allowed to relitigate whether the Town violated the Tree
Ordinance, the prior proceedings would be undermined. Second, judicial economy would also be
promoted in the present case because “[a]llowing the trial court to rely on the
litigated and necessary findings from the [prior judicial proceedings] would
‘minimize repetitive litigation.’
[Citation.]†(
Third, the policy against vexatious litigation favors applying issue
preclusion because appellants had an opportunity in the prior proceeding to
show that the Town’s approval of Ordinance No. 2193 violated the Tree Ordinance.
In
sum, collateral estoppel precludes litigation of the Town’s compliance with the
Tree Ordinance. Accordingly, we do not
consider appellants’ contention that the EIR fail
| Description | Appellants Ross Creek Neighbors, Committee for Green Foothills, and Douglas V. Ownbey challenged the certification of an environmental impact report (EIR) and approval of a project to construct seven homes. The issues in the present appeal are whether respondents[1] Town of Los Gatos and its Town Council (Town) were required to circulate an “Addendum-Amendment†(Amendment) to the final EIR and whether the final EIR fails as an informational document.[2] We affirm the order. |
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