Srago v. West Contra Costa Unif. School
Dist.
Filed 8/2/12
Srago v. West Contra Costa Unif. School Dist. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
MICHAEL D. SRAGO et al.,
Plaintiffs
and Appellants,
v.
WEST CONTRA
COSTA UNIFIED SCHOOL DIST. et al.,
Defendants and Respondents.
A132267
(Contra Costa County
Super. Ct. Nos. N09-0027,
N09-1910)
INTRODUCTION
Michael D. Srago
and other individuals
name="_ftnref1" title="">[1] appeal from a judgment of
the Contra Costa County Superior Court filed March 15, 2011, in
consolidated actions in which appellants sought a writ of mandate and also
sought declaratory relief against
respondent West Contra Costa Unified School District (district) and the
district’s Board of Education (board) for asserted violations of the California
Environmental Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA))
Ralph M. Brown Act (Gov. Code, § 54950.5 et seq.) (Brown
Act). Appellants challenged respondents’
actions in choosing to retrofit Castro Elementary School as a new replacement
site for Portola Middle School, after the middle school was determined to be
structurally unsafe.
Appellants
contend: (1) reversal is required
because a notice of exemption (NOE)
filed in connection with the Master Plan adoption was not a document “in lieu
of” a supplemental environmental impact report (EIR) and the filing of the NOE
did not trigger a statute of limitations; (2) the district did not proceed
in the manner required by law in certifying the EIR as (a) it did not
provide sufficient public access to the draft and final EIRs and (b) the
board did not substantially comply with Guidelines § 15090 in reviewing
and certifying the final EIR; (3) the district violated CEQA in refusing
to recirculate the draft EIR to the California Department of Fish and Game
following reports that Cooper’s hawks might be nesting at the project site;
(4) the draft and final EIRs were inadequate as they failed to address
project impacts on full inclusion special education students under
section 21083, subdivision (b)(3); and (5) respondents did not
adequately consider a range of project alternatives and inappropriately
rejected a K-8 alternative. Finally,
(6) appellants contend the court erred in rejecting their Brown Act
challenges to the asserted failure of the agenda to specify the business to be
transacted and to the board’s failure to state explicitly or in detail the
board’s approval of the project as a separate and distinct action from
certification of the EIR. We shall
affirm.
FACTS AND PROCEDURAL BACKGROUND
Respondent
district is a public school district in
County. Portola Middle School and Castro
Elementary School are located within the City of El Cerrito and in the El
Cerrito High School attendance area, which includes eight elementary and three
middle schools. Portola Middle School is
located less than half a mile from the Hayward Fault and is particularly
vulnerable to earthquake activity. In
2006, the Division of the State Architect opined that the safety of students at
Portola Middle School was at risk and the situation must be corrected. Further studies and assessments convinced the
district that repair or reconfiguration of uses at the Portola Middle School
site were infeasible from cost and engineering standpoints and the district
sought input on alternative solutions.
In
February 2008, the district issued a “Notice of Preparation of an Environmental
Impact Report and Notice of Scoping Meeting” for “Construction and Renovation
of the Castro Elementary School to Replace the Portola Middle School
Project.” The Notice of Preparation
included an Initial Study based on a conceptual design for the closure of
Portola Middle School and renovation, demolition and construction at Castro
Elementary School for the purpose of constructing a middle school that would
accommodate 600 middle school students on the site. A draft EIR was prepared following public and
agency input. The district issued a
final EIR in December 2008, after extensive public input, including input from
appellants. At a public meeting held
December 10, 2008, the board voted to certify the final EIR and approve
the project. The district filed a
“Notice of Determination” on December 12, 2008.
On
January 12, 2009, appellants filed a petition for writ of mandate
(N09-0027) in the superior court, seeking to overturn the district’s passage of
Resolution No. 45-0809, certifying the final EIR and approving the
project. Appellants alleged the district
had violated CEQA procedurally by failing to provide adequate public access to
the draft EIR and substantively by failing to include an adequate range of
alternatives, failing to properly analyze the impacts of traffic and the
presence of middle school students in the neighborhood, failing to adequately
analyze impacts of the project upon special education students at the
elementary school, and failing to recirculate the draft EIR or include
additional mitigation for the Cooper’s hawk.
Appellants also alleged that the district had violated the Brown Act in
passing the December 10, 2008, resolution when the issue of project
approval was not properly on the agenda and by miscounting the votes of the
board.
On April 22, 2009, the trial court overruled demurrers
filed by the district and denied a motion to strike allegations relating to
social effects of the project on students at the elementary school in
determining whether or not the physical effect on the environment was
significant. On April 29, 2009, upon
agreement of the parties, the court issued a no-bond preliminary injunction,
prohibiting the district from any demolition or construction at the Castro
Elementary School site, but allowing the district to proceed with project
design.
The district moved forward with the planning process,
completing the Castro Site Master Plan.
The Board approved the Master Plan on October 21, 2009. At that board meeting, appellants argued that
differences between the final EIR and the Master Plan required preparation of a
supplemental EIR and requested that the board direct district staff to prepare
a supplemental EIR.
On
November 20, 2009, appellants filed a second petition for writ of mandate
(N09-1910), alleging a single cause of action that the district violated CEQA
by not preparing a supplemental EIR before passing the October 21, 2009
resolution approving the Master Plan.
Appellants alleged the Master Plan introduced four substantial changes
to the project, requiring further environmental review. The trial court consolidated this
“subordinate” action with the original action.
On June 24, 2010, the district filed a response to
the first amended petition in the master case, but failed to include a response
to the Master Plan challenge raised in the second petition.
On
October 1, 2010, the district executed, but did not at that time file, a
NOE “for the approval of the Master Plan.”
The NOE stated: “Specifically,
the Master Plan contemplated a small increase in the foot print of the
buildings to be constructed on site from that which was studied in the EIR
(less than 1,500 s/f). The Master Plan did
not include any other changes from the EIR, including no changes to: increased building heights, increased levels
of excavation on site, increase in trees to be removed and replanted or
decrease in anticipated students who will bike to the new school.” (Underlining
in original.) The NOE claimed
categorical exemptions under four classes, pursuant to Guidelines sections 15301,
15302, 15303 and 15314.
name="_ftnref3" title="">[3] Appellants were not specifically notified of
the existence of the NOE, nor was it mentioned at any time before or during the
subsequent November court hearing on the two petitions.
At
the November 15, 2010 hearing in the consolidated cases, appellants
contended the allegations of the second petition in the subordinate case (the
challenge to the failure to prepare a supplemental EIR in connection with
changes in the Master Plan) must be deemed admitted, due to the district’s
failure to file a response to those allegations or a general denial. In a tentative ruling issued
November 12, in advance of the November 15 hearing, the court had
agreed, treating the district’s failure to answer as admitting the allegations relating
to the Master Plan. The tentative ruling
stated: “However, the issues that are
being returned for a supplemental report are very narrow. They are approval of the Master Plan in the
following areas: Substantial increase of
excavation, substantial increase in number of trees to be removed and corresponding
substantial decrease is [sic] the
number of trees to be replaced and substantial reduction in anticipated use of
bicycles. The issue with respect to
substantial increase in traffic flows was rendered moot as addition of an
automobile drop off was subsequently withdrawn by the
school. . . .”
The
court issued its ruling on the petitions on November 29, 2010, modifying
its tentative ruling by addressing additional arguments made by the district at
the hearing, and granting the writ “solely with respect to approval of
the master plan. In all other respects
the writ is denied.” The court reasoned
the district’s failure to answer allegations with respect to the approval of
the Master Plan required that the allegations be deemed true. However, the November 29, 2010
modification of the tentative ruling also eliminated the paragraph identifying
the particular “issues that are being returned for supplemental report.” The November 29 ruling contained an
extensive discussion of the court’s reasons for denying the balance of the two
petitions.
The
district gave appellants notice of the entry of this unreported minute order
“Granting in Part” the petition on December 1, 2010. Two days later, on December 3, 2010, the
district filed the October 1, 2010 NOE with the Contra Costa County
Clerk. It was posted with the county
clerk for 35 days, pursuant to law (Guidelines, § 15062) and it was also
posted on the district’s Web site. No
action was taken to challenge the NOE within 35 days, the time prescribed by
section 21167, subdivision (d)
section 15062, subdivision (d).
Reference
was made to the NOE in the district’s case management statement filed
February 1, 2011, and served on appellants’ counsel, in connection with
the case management conference scheduled for February 7, 2011. A copy of the NOE was attached to the case
management statement wherein it was stated that the district had filed the NOE
“to conclude the matter” after the November 15, 2010 hearing, that the NOE
had been “duly posted with the County Clerk for 35 days and, further, was
posted on the [d]istrict’s website. The
statute of limitations has passed for any challenge to the Notice of
Exemption. Therefore, this action should
be ordered dismissed.”
On
March 15, 2011, the trial court entered the judgment that is the subject
of this appeal, providing in relevant part as follows:
“[U]pon
the Court having determined that Respondent approved a Master Plan for the
Project on October 29, 2009 without having prepared a Supplemental
Environmental Impact Report with respect to certain issues, and
Exemption in lieu of a Supplemental Environmental Impact Report on
December 3, 2010, and upon the time for a challenge to the Notice of Exemption
having expired; and upon the Court’s Orders having been filed on
November 12, 2010 and on November 29, 2010; and upon the Court having
directed that judgment issue in the proceeding:
“IT
IS ORDERED THAT:
“1. Judgment
be entered directing respondent to comply with the California Environmental
Quality Act (‘CEQA’
with respect to the following Castro Site Master Planapproval issues only:
“a. Increase
of excavation
“b. Increase
in number of trees to be removed
“c. Corresponding
decrease in number of trees to be replaced
“d. Reduction
in anticipated use of bicycles
“2. Judgment
be entered in favor of Respondent in this proceeding on all other issues.
“3. The
Preliminary Injunction issued by the Court on April 29, 2009 is hereby
vacated.
“4. Each
party shall bear their own attorneys fees and costs of suit.
“IT
IS SO ORDERED.” (Italics added.)
No
writ issued after entry of the judgment.
The parties both appear to interpret the judgment as determining that
because no challenge was made to the NOE within the statutory period, the NOE
satisfied the court order directing respondent to comply with CEQA with respect
to the four narrow Castro Site Master Plan approval issues. All other issues were determined in favor of
respondents.
title="">[5]
This
timely appeal followed.
DISCUSSION
I. CEQA Standards of Review
Standards
of judicial review for CEQA determinations are well established:
“ ‘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.”
[Citation.] 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.” ’ [Citation.]”
(Citizens for Responsible
Equitable Environmental Development v. City of San Diego (2011)
196 Cal.App.4th 515, 522, (CREED).)
“Judicial
review of these two types of error differs significantly: While we determine de novo whether the agency
has employed the correct procedures, ‘scrupulously enforc[ing] all
legislatively mandated CEQA requirements’ (Citizens
of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [(
deference to the agency’s substantive factual conclusions. In reviewing for substantial evidence, the
reviewing court ‘may not set aside an agency’s approval of an EIR on the ground
that an opposite conclusion would have been equally or more reasonable,’ for,
on factual questions, our task ‘is not to weigh
has the better argument.’ ([
of University of California (1988) 47 Cal.3d 376, 393 (
Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 435 (Vineyard.)
“ ‘An
appellate court’s review of the administrative record for legal error and
substantial evidence in a 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.’ (Vineyard,
supra, 40 Cal.4th at p. 427.)”
(CREED, supra, 196 Cal.App.4th
at p. 523.)
II.
Appellants
contend the court erred in determining that an NOE filed in connection with the
Master Plan adoption was a document “in lieu of” a supplemental EIR and that
filing of the NOE triggered the statute of limitations for challenges to its
use. We shall conclude that because
appellants failed to timely challenge the NOE within the time set forth in
Guidelines section 15062, subdivision (d), they are precluded from
contending that the NOE was not an appropriate response to the trial court’s
order requiring them to comply with CEQA.
(Guidelines, § 15062, “Notice of Exemption”.)
The
superior court issued its order modifying its tentative decision on
November 29, 2010, granting the writ “solely with respect to
approval of the master plan. In all
other respects the writ is denied.” In
that order, the court rejected respondents’ claim that even if appellants’
allegations regarding the Master Plan were correct, the court would still be required
to determine whether the district violated CEQA. The court stated: “c. This case is not as simple. As the allegations are deemed admitted, it
then became the district’s burden to cite to facts in the administrative record
to show there had not been any ‘substantial’ changes in the master plan or that
those changes which did occur did not invoke any of CEQA’s protections which
then required the district to prepare a supplemental report. [¶] d. It is not the court’s
responsibility to rummage around in the administrative record looking for
evidence that shows petitioners are not correct when they claim there have been
substantial changes to the master plan that required a supplemental
report.”
The
district responded to the order by filing and posting the previously executed
NOE related to the Master Plan. It is
undisputed that the NOE was posted on December 3, 2010, by the county
clerk and on the district’s Web site and that appellants did not challenge the
NOE within the 35-day time limits set forth in Guidelines section 15062,
subdivision (d), for challenges to a properly filed NOE.
Legal
principles related to notices of exemption were summarized in
Water Dist. (2009) 170 Cal.App.4th 956, 965-966, (Great Oaks Water Co.):
“ ‘ “[T]he overriding purpose of CEQA is to ensure that
agencies regulating activities that may affect the quality of the environment
give primary consideration to preventing environmental damage.” [Citation.]’
(San Lorenzo Valley Community
Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist.
(2006) 139 Cal.App.4th 1356, 1372 (San
Lorenzo).) To be consistent with
this strong environmental policy, whenever the approval of a project is at
issue, CEQA and the Guidelines ‘ “have established a three-tiered process
to ensure that public agencies inform their decisions with environmental
considerations.” [Citations.]’ [(Ibid.)]
“ ‘ “The
first tier is jurisdictional, requiring that an agency conduct a preliminary
review in order to determine whether CEQA applies to a proposed activity. (Guidelines, §§ 15060, 15061.)” [Citation.]
CEQA applies if the activity is a “project” under the statutory
definition, unless the project is exempt. [
from CEQA under any of the stated exemptions, no further environmental review
is necessary.” [Citation.]’ (San
Lorenzo, supra, 139 Cal.App.4th at pp. 1372-1373.) Where this determination has been made, an
agency may, but is not required to, file a notice of exemption. (Guidelines, § 15062;
City of Los Angeles (2001) 90 Cal.App.4th 1162, 1171,
109 Cal.Rptr.2d 504.)” (
Cal.App.4th at pp. 965-966 & fn. 8.)
“Once
it has been properly determined that an exemption from CEQA applies, an agency
need not conduct further analysis or progress to the second or third tiers of
the scheme’s environmental review.
(Guidelines, §§ 15002, subd. (k)(1), 15061,
subd. (b)(1)[-(5)].)” (
at p. 967.)
“If
an agency chooses to file a notice of exemption, the notice must be filed
filing the notice. [Italics
added.] If the notice is prepared before
the agency takes action on the project and is kept with the project file
[citations], it can serve as a record of the agency’s CEQA determination for
the project. [(Guidelines § 15061,
subd. (d).)]” (1 Kostka &
Zische, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed.
2012 update) § 5.116, p. 288 (Kostka & Zische).) “ ‘A
notice of exemption has no significance other than to trigger the running of
the limitations period.’ (
City of Los Angeles, supra, 90 Cal.App.4th at p. 1171, 109
Cal.Rptr.2d 504.)” (San Lorenzo, supra, 139 Cal.App.4th 1356, 1385, italics
added.)
The
Guidelines state that a review of an activity to determine whether it is exempt
should occur during the preliminary review.
(Guidelines, §§ 15060, 15061, subd. (a).) Consequently, the failure to make a specific
exemption decision before approving a project may be questionable. (See Dunn-Edwards
Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th
644, 656, disapproved on another ground in Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 569-570
& fn. 2; 1 Kostka & Zische, § 5.116,
pp. 288-289.) However, as Kostka
and Zische recognize, “The CEQA Guidelines provide, however, only that a notice
of exemption must be filed, if at all, after approval of a project. There is no time limit on filing the notice
of exemption after approval, nor do the Guidelines require that an explicit
finding that a project is exempt be made before approval.” (1 Kostka & Zische, § 5.116,
p. 289.) Here, the NOE was executed
on October 1, 2010 and filed in December 2010, well after both project
approval in December 2008 and Master Plan approval in October 2009.
Section 21168.9
describes the range of actions a court may take when it finds that a public
agency has failed to comply with CEQA.
in this section authorizes a court to direct any public agency to exercise its
discretion in any particular way. Except
as expressly provided in this section, nothing in this section is intended to
limit the equitable powers of the court.”
(§ 21168.9, subd. (c).) The order here granted the writ solely
as to appellants’ specific challenges to the Master Plan adoption. Although the court’s tentative ruling
referenced a “supplemental report” to address the deemed substantial changes,
its recognition in the judgment that respondents had filed the NOE “in lieu” of
a supplemental EIR, the court’s lifting of the preliminary injunction, and its
refusal to actually issue the writ thereafter indicates that the court had not
previously directed the particular manner in which the district must comply
with CEQA.
It may well be the case that the execution and filing of
an NOE was not an appropriate response to the court’s direction to comply with
CEQA, where the consideration whether the activity was exempt did not occur
during the preliminary review of the project; where respondents had already
determined to proceed with the EIR process for the project; and where the NOE
did not relate to the entire project, but to the adoption of a Master Plan that
occurred after approval of a final EIR.
Indeed, we have found no authority suggesting that after an agency has
already determined that CEQA review and compliance is required for a project,
an NOE would be an appropriate response to subsequent changes in the
project. The exemption question is
considered at the preliminary review stage of the project. (Guidelines, §§ 15060, 15061,
subd. (a) [“Once a lead agency has determined that an activity is a
project subject to CEQA, a lead agency shall determine whether the project is
exempt from CEQA.”].)
Nevertheless,
we are convinced appellants’ failure to challenge the NOE within the 35-day
statutory time limit precludes them from raising these issues on appeal. (
City of Stockton (2010) 48 Cal.4th 481, 489 (Stockton Citizens).)
In
Stockton Citizens, supra, 48 Cal.4th
481, the California Supreme Court held that “flaws in the decision-making
process underlying a facially valid and properly filed NOE do not prevent the
NOE from triggering the 35-day period to file a lawsuit challenging the
agency’s determination that it has approved a CEQA-exempt project.” (Id. at
p. 489.) The court explained: “[CEQA] seeks to ensure that public agencies
will consider the environmental consequences of discretionary projects they
propose to carry out or approve. On the
other hand, the Act is sensitive to the particular need for finality and
certainty in land use planning decisions.
Accordingly, the Act provides ‘unusually short’ limitations periods
([Guidelines] § 15000 et seq. . . , § 15112,
subd. (a)) after which persons may no longer mount legal challenges,
however meritorious, to actions taken under the Act’s auspices.” (Id. at
p. 488.) “Hence, plaintiffs’ claims
that the . . . approval action was procedurally flawed, and
substantively mistaken, cannot delay commencement of the 35-day statute of
limitations triggered by City’s filing of the NOE. Plaintiffs were free to claim, in a lawsuit,
that the underlying approval process failed to comply with CEQA,
within 35 days after the NOE was filed.”
(Id. at p. 489
Appellants contend that they did timely commence such
litigation. They argue that their
Master Plan presented a timely challenge to the NOE, because it was filed
within 180 days of execution of the NOE and within 35 days of its posting. We disagree.
The second writ petition was filed on November 20, 2009, nearly a
year before the NOE was even
executed. The second writ petition
alleged that the approval of the Master Plan violated CEQA, because the Master
Plan made substantial changes to the project that would require major revisions
to the EIR.
title="">[9] The second petition alleged that no
supplemental EIR had been prepared and that the “District did not determine whether further CEQA review was required. Accordingly, the District abused its
discretion in that it failed to proceed as required by law, and the District’s
decision approving the Changed Project was not supported by substantial
evidence.” (Italics added.) We observe that adoption of the NOE
necessarily was a determination by the district that no further CEQA review was
required. None of the allegations of the
second petition sufficed to challenge the NOE or the district’s determination that
the changes to the Master Plan were categorically exempt. The NOE was filed and posted in response to
the court order finding that appellants’ challenges were deemed admitted by the
district’s failure to answer those allegations and its direction to the
district to comply with CEQA. Appellants’
contention that the NOE was not a proper response required them to bring a
timely challenge to that document.
Appellants
contend that requiring them to file a third petition challenging the NOE after
they had successfully prosecuted the second petition would merely create a
multiplicity of petitions and would lengthen already lengthy proceedings. Nevertheless, the Guidelines are clear that
“[t]he filing of a Notice of Exemption and the posting on the list of notices
start a 35 day statute of limitations period on legal challenges to the
agency’s decision that the project is exempt from
CEQA. . . .” (Guidelines,
§ 15062, subd. (d).)
Moreover,
there is ample precedent requiring a further challenge to an agency’s asserted
deficient response to a court order mandating CEQA compliance following a
successful (in whole or part) first petition.
Laurel Heights I, supra, 47 Cal.3d
376, and Laurel Heights Improvement Assn.
v. Regents of University of California (1993) 6 Cal.4th 1112 (
Heights I, petitioner association mounted a partially successful
challenge to the adequacy of a 1986 EIR for a project that involved the
proposed relocation of the biomedical research facilities of the UC School of
Pharmacy. (See Laurel Heights II, at p. 1119.) Because of deficiencies in the project
description and alternatives discussion, the Supreme Court directed the Regents
to prepare and certify an adequate EIR.
(Id. at p. 1121.) In the wake of that decision, the Regents produced
a new draft EIR. (Ibid.) The draft EIR was
published and after public comments the Regents adopted a final EIR. The final EIR contained new information that
was not present in the draft EIR.
However, it was not recirculated for public comment. (Id. at
p. 1122.) The petitioner
association filed a second writ of mandate challenging the validity of the
final EIR on numerous grounds and requesting vacation of the Regents’ EIR
certification. (Ibid.) The Court of Appeal
held failure to recirculate the final EIR was reversible error. The Supreme Court disagreed, concluding that
substantial evidence supported the Regents’ decision not to recirculate the
final EIR. (Id. at p. 1120.)
We
conclude the time for appellants to pursue their CEQA remedies with regard to
the exemption determination for the Master Plan has expired.
Asserted Violations of CEQA’s Procedural Requirements
Appellants assert the district
failed to met CEQA’s public disclosure requirements for circulation of the
draft EIR and that the board violated CEQA’s mandate to review and consider the
final EIR before adopting it.
A. Availability of the draft EIR
Appellants contend that the
draft EIR was not sufficiently made available to the public to comply with the
CEQA mandates. Guidelines
section 15087 sets forth the notice steps that the lead agency must take
to enable public review of the draft EIR.
Guidelines section 15087, subdivision (g), provides in
relevant part: “To make copies of EIRs
available to the public, lead agencies should
furnish copies of draft EIRs to public library systems serving the area
involved. Copies should also be
available in offices of the lead agency.”
(Italics added.) Even ignoring
that the verb “should” is directory rather than mandatory, the district
complied with this Guideline.
Appellants
concede that the district produced 11 hard copies of volume 1 of the draft
EIR (the main body of the document), one hard copy of volume 2 (primarily
the appendices with reports and studies referenced in volume 1) and 20 CD
copies of volume 2 to accompany the other copies of volume 1, and
that the district put all the materials on its Web site. One hard copy of volume 1 of the draft
EIR with one CD of volume 2 was placed in the public library system, at
the El Cerrito Public Library, a library near the project. Copies of the draft EIR were provided to the
board, to appellant Castro School and Neighborhood Group, and to appellants’
counsel. Although CEQA does not
electronic copies of EIR documents available online, the district did so and
the Notice of Availability published by the district unambiguously directed
readers to the district’s Web site.
Rather than
pointing to any particular failure of the district to comply with the
Guidelines, appellants argue that the district could have and should have done
more to make the documents more widely available. Appellants complain that copies were not
located at more libraries. They also
argue that the hard copy of volume 2 (the Technical Appendices) moved
around from time to time and that the CD for volume 2 at the El Cerrito
Library was difficult to access and that the time allowed on the library
computer was limited. Appellants point
to an e-mail exchange involving a request for extra copies of the voluminous
EIR. In that request, appellant Farrell
requested the district’s CEQA consultant to provide full hard copies of the EIR
(which numbered some 1570 plus pages) for “at least 40 people.” Instead of simply denying the request, the
consultant attempted to accommodate the request, explaining the practical
rationale for printing a limited number of extra copies of the technical
appendices of the EIR. She also advised
that, “The District Webmaster will be posting the entire document on their
website and we can easily make more CDs available, so I would ask that you note
that to all interested parties so we can print out only the number of hard
copies that are really needed.”
Moreover, appellants’ anecdotal references to difficulties by one person
on one occasion in getting the draft to open online (but apparently succeeding
in downloading the two documents in about half an hour) and to the failure of
district staff at the district office immediately to provide some of the references
in the draft EIR to another appellant at his request, did not demonstrate that
appellants or the public at large were ultimately prevented from obtaining the
information they wanted. Appellants
mistakenly maintain that this latter failure to immediately produce the
referenced materials violated Guidelines section 15087(c)(5), which
provides: “The notice shall disclose the
following: [¶] . . . [¶] (5) The address where copies
of the EIR and all documents referenced in the EIR will be available for public
review. This location shall be readily
accessible to the public during the lead agency’s normal working hours.”
The
district scrupulously complied with CEQA’s public disclosure requirements.
B. Board’s duty to review and consider the final EIR
At the
December 10, 2008 meeting, the board adopted Resolution No. 45-0809,
certifying that it had “reviewed and considered the Final EIR and the
information contained therein prior to deciding whether to approve the proposed
Project” in compliance with CEQA. (§ 21082.1;
Guidelines, § 15090.) Guidelines
section 15090 provides in relevant part:
“(a) Prior
to approving a project the lead agency shall certify that:
“(1) The
final EIR has been completed in compliance with CEQA;
“(2) The
final EIR was presented to the decisionmaking body of the lead agency and that
the decisionmaking body reviewed and considered the information contained in
the final EIR prior to approving the project; and
“(3) The
final EIR reflects the lead agency’s independent judgment and analysis.”
Appellants
contend “[t]here were significant procedural problems with the Final EIR.” Specifically, they contend that the board
could not have reviewed and considered the voluminous final EIR (approximately
1,300 pages) before certifying it and approving the project because: (1) The final EIR was distributed on
December 2, 2008, but sent to board members’ homes on December 5,
2008, along with the agenda for the December 10, 2008 meeting, and other
documents. (2) Four board members
were in San Diego for a school board convention and did not return until
Saturday night, December 6.
(3) Two members of the board were recently elected and took office
at the start of the December 10 meeting.
(4) The final EIR included 66 pages of changes to the draft EIR
that had not been integrated into a single document, so that one was required
to cross-reference the two to understand the information. Relying on inferences from these facts,
appellants contend the board did not have enough time to integrate the changes,
to read, and to consider the 1300 page final EIR.
In essence,
appellants’ claim is that the board members could not have “read” all 1300
pages of the final EIR, and that despite that document’s including a summary of
the changes made to the draft EIR, the board would have had to compare the
changes to the original. Appellants cite
no authority that such efforts are necessary to constitute the required review
and consideration of the information contained in the final EIR. The Legislature did not use the term
“read.” As stated by Kostka and
Zischke: “Decision-makers are not
literally required to read the EIR itself; they must certify only that they
have ‘reviewed and considered the information contained in the final EIR.’ [(Guidelines] § 15090[,
subd.] (a)(2). [)] A requirement
that decision-makers read the entire EIR would be unrealistic. EIRs are usually technical, long, and
tedious; and . . . board members do not have the time to
read the EIR for every project they consider.
Instead, they often rely on the EIR’s executive summary or written
reports and oral presentations by staff, which summarize the information
contained in the report.”
(2 Kostka & Zischke, supra,
§ 17.7, pp. 805-806.) We
do not presume that the decision-makers actually reviewed and considered the
information in the EIR simply because the agency record contains the
report. (Ibid; Kleist v. City of Glendale (1976) 56 Cal.App.3d 770,
777.) “However, a specific finding
reciting that the decision-making body reviewed and considered the information
in the final EIR is sufficient evidence that it actually did so. [Citation.]”
(2 Kostka & Zischke, supra,
§ 17.7 at p. 806, citing Greenebaum
v. City of Los Angeles (1984) 153 Cal.App.3d 391, 402-403
[distinguishing Kleist v. City of
Glendale on the basis that members of the city council each received copies
of the draft and final EIRs, numerous hearings were held before the council,
and most critically, “this City Council, in direct contrast to the Glendale
City Council in Kleist, voted to
certify the finding that they had, ‘reviewed and considered the information in
the final EIR’ and also, that the EIR had been ‘completed in compliance
with . . . CEQA . . . and the State’s and City’s
Guidelines’ ”].) By adopting
Resolution No. 45-0809, the board in this case certified it had reviewed
and considered the EIR in compliance with CEQA.
(Greenebaum v. City of Los
Angeles, supra, at pp. 403-404.)
We do not second guess that representation.
C. Refusal to recirculate the draft EIR to the Department of Fish and Game
upon receiving new information about Cooper’s hawks nesting habitat
Appellants contend the district
failed to comply with CEQA by failing to recirculate the draft EIR to the
Department of Fish and Game upon receiving additional information about
Cooper’s hawks in the project area.
The draft
EIR listed the Cooper’s Hawk among the “special status” migratory birds and
described its habitat. However, it
omitted the species from the list of special wildlife species in the biological
resources section and erroneously stated that there was no suitable habitat for
the bird within the study area. The
biological impact study, community comments and recommended mitigation measures
assumed that other special status migratory birds could be present on the
site. Therefore, mitigation
measure 4.3.2 required the district to retain a qualified biologist to
conduct a pre-construction survey for any active nests, maintain an exclusion
zone of 100 feet if an active nest was found, and to alter the construction
schedule to minimize impacts on any such birds during nesting and fledging
period.
Appellants
reported a pair of Cooper’s hawks at the site and commented on the proposed
mitigation, “demand[ing] that Mitigation Measure 4.3.2 be revised [to] the
standard 250 feet buffer and state:
‘. . . If an active nest is located within the 250-foot
survey area, other restrictions may include establishment of exclusion
zones (no ingress of personnel or equipment at a minimum radius of 250 feet around
the nest as confirmed by the appropriate resource
agency) . . .’ ” The
final EIR incorporated this mitigation, increasing the buffer zone to 250
feet. The district concluded that
implementation of the mitigation measure “would reduce impacts to special-status
avian species, including migratory birds, to a less than significant level.”
The district refused to recirculate the draft EIR.
As the
California Supreme Court explained in Laurel
Heights II, supra, 6 Cal.4th at p. 1132: “Recirculation was intended to be an
exception, rather than the general rule.”
“Normally, an EIR is
circulated for one round of review and comment by the public and by public
agencies. In some instances, however, an
EIR must be recirculated for a second round of review and comment.” (2 Kostka & Zischke,
pp. 786-787.) Where significant new
information is added to an EIR after public review, but before final
certification of the EIR, the lead agency must issue a new notice and
recirculate the EIR for comments and consultation. (Ibid.;
§ 21092.1; Guidelines, § 15088.5; Vineyard,
supra, 40 Cal.4th at p. 447.)
“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. . . .”
(Guidelines, § 15088.5, subd. (a); see Laurel Heights II, supra, 6 Cal.4th at p. 1120;
p. 447; California Oak Foundation v.
Regents of University of California (2010) 188 Cal.App.4th 227, 266 (
2 Kostka & Zischke, § 16.15 at p. 787.)
“Recirculation
is not required where the new information added to the EIR merely clarifies or
amplifies or makes insignificant modifications in an adequate EIR.” (Guidelines,
§ 15088.5, subd. (b); Laurel
Heights II, supra, 6 Cal.4th at pp. 1129-1130;
2 Kostka & Zischke, supra, at
§ 16.15. p. 789.)
“We review
an agency’s decision not to revise and recirculate a [draft] EIR only to ensure
it is supported by substantial evidence.
(Guidelines, § 15088.5, subd. (e).) In doing so, we resolve reasonable doubts
regarding the agency’s decision in favor of upholding the administrative
decision. (Laurel Heights [II, supra,]
6 Cal.4th at pp. 1133, 1135 . . . .)” (California
Oak Foundation, supra,
188 Cal.App.4th at p. 266; accord, Silverado Modjeska Recreation & Parks Dist. v. County of Orange
(2011) 197 Cal.App.4th 282, 303-304.)
We are
convinced that substantial evidence supports the decision not to recirculate
the draft EIR following discovery that the Cooper’s hawks were present at the
site. The draft EIR, although
erroneously listing stating that the habitat was unsuitable for Cooper’s hawks,
did recognize that other special status species might be present. It recognized that the project could result
in the loss of populations or essential habitat for special-status avian
species through tree removal and other construction activities and that this
would be considered a potentially significant impact. The mitigation measure MM 4.3.2 adopted
in the draft EIR was aimed at reducing that potentially significant impact for
the list of special-status wildlife species that have the potential to occur in
the project area or immediate vicinity.
The district’s response to comments on the draft EIR states that, “The
additional language was added as a clarification
to the reader that Cooper’s hawk will be protected per the Migratory Bird Treaty Act and
measures outlined in mitigation measure MM 4.3.2.” (Italics added.) Further, the final EIR incorporated the
increased preconstruction survey and buffer zone as demanded by
appellants. The response concluded that
the revision of the discussion and mitigation measure “does not change the
impact analysis or require recirculation.”
Nor do we
find persuasive appellants’ reliance upon Sierra
Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 37, disapproved
on other grounds in Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570,
fn. 2, 576, fn. 6, to support recirculation. In that case, the appellate court affirmed
the city council’s adoption of the final EIR that had been recirculated to the
Department of Fish and Game after significant new information had been received
relating to the presence of the California Tiger Salamander. The department had responded to a draft EIR
that had not addressed the salamander or its habitat. (Sierra
Club v. Gilroy City Council, supra, at p. 36.) Thereafter, the department requested that the
potential existence of the species on the site be studied for the first
time. Following additional studies, the
EIR was properly recirculated to the department to allow it the opportunity to
comment on the information it did not have previously. (Id.
at p. 38.) The department
recommended additional mitigation measures.
(Ibid.) This case is factually distinguishable. Here the draft EIR already took account of
the potential existence of special-status migratory birds and contained
mitigation measures calling for a buffer, among other measures, as if the hawks
were actually present.
Substantial
evidence supports the district’s determination that the discovery of Cooper’s
hawks near the project site was not “significant” as it did not change the EIR
“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. . . .” (Guidelines, § 15088.5, subd. (a);
see Laurel Heights II, supra, 6 Cal.4th
at p. 1120; Vineyard, supra,
40 Cal.4th at p. 447; California
Oak Foundation, supra, 188 Cal.App.4th at p. 266; 2 Kostka
& Zischke, § 16.15 at p. 787.)
As our Supreme Court observed in Laurel
Heights II, “[T]he Legislature did not intend to promote endless rounds of
revision and recirculation of EIR’s.
Recirculation was intended to be an exception, rather than the general
rule.” (6 Cal.4th at p. 1132.)
Impacts to Full Inclusion Program and Harm to Special Ed Students
Appellants contend the draft and
final EIRs were deficient as they did not adequately consider project impacts
in dismantling the full inclusion program at Castro Elementary School and the
harm to the special needs students served by that program in moving them to
other schools. Appellants attempt to
distinguish Citizen Action To Serve All
Students v. Thornley (1990) 222 Cal.App.3d 748 (Thornley), which held that closure of a popular high school with
its attendant serious economic and social effects on low income and bilingual
students was not a decision impacting the environment within the meaning of
CEQA. (Id. at pp. 758-759.)
impression.
However, we
agree with respondents that the issue is moot, because “the Castro Elementary
School Full Inclusion Program has already been relocated successfully to other
[district] schools.”
name="_ftnref13" title="">[13] The preliminary injunction that issued in
April 2009, did not prevent the closure of Castro Elementary School that had
been announced to the community and parents.
It enjoined the district from proceeding with demolition and
construction at the site, but permitted the closure of the school and
reassignment of students. Castro
Elementary School was closed in its entirety by June 30, 2009, and the
full inclusion program and all students in the program were relocated to two
other elementary school sites in the district in August 2009. Appellants do not dispute that Castro
Elementary School has been closed, and its students moved to other schools in
the district. Nor do they dispute
respondents’ claim that this issue is, therefore, moot.
“ ‘An
appellate court will not review questions which are moot and which are only of
academic importance.’ [Citations.] A question becomes moot when, pending an
appeal . . . events transpire that prevent the appellate
court from granting any effectual relief.
[Citations.]” (
156 Cal.App.4th 413, 419; see, e.g., In
re Anna S. (2010) 180 Cal.App.4th 1489.) “The policy behind a mootness dismissal is
that courts decide ‘actual controversies’ and normally will not render
‘advisory opinions.’ [Citations.]” (Eisenberg,
Civil Appeals and Writs, supra,
¶ 5:22, p. 5-6.)
Consideration of a Reasonable Range of Alternatives
Appellants contend that the
district did not consider a “range of reasonable alternatives to the project.” (Guidelines, § 15126.6.)
alternatives studied in the final EIR are “strawmen” alternatives that the
district rejected as infeasible before preparation of the draft EIR. Appellants also contend that a feasible
alternative, the K-8 alternative, was improperly rejected before the
environmental analysis began.
During the
scoping process and later alternatives analysis, the district considered a
broad range of options. Four project
alternatives and the required no-project alternative were discussed in
detail. Nine additional options were
considered, but rejected as infeasible.
Among those considered, but rejected as infeasible was the K-8 option.
Two of the
feasible alternatives considered in the EIR included relocating Portola
students to schools other than Castro Elementary (including the Fairmont
Elementary site) and a third considered the acquisition of a new site and
construction of school facilities thereon (the Dolan Lumber alternative). When it certified the EIR, the district made
nearly 50 pages of findings, including five pages on the subject of
alternatives. They address both the
alternatives analyzed in the draft EIR and the alternatives rejected as
infeasible. The findings address all
five project alternatives, including the “no project” alternative, and relate
the district’s reason for rejecting proposed alternatives in detail.
“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.” (
II reaffirmed “the principle that an EIR for any project subject to CEQA
review must consider a reasonable range of alternatives to the project,
which: (1) offer substantial
environmental advantages over the project proposal (Pub. Resources Code,
§ 21002); and (2) may be ‘feasibly accomplished in a successful
manner’ considering the economic, environmental, social and technological
factors involved. (Pub. Resources Code,
§ 21061.1; Guidelines, § 15364; [citation].)” (Goleta II,
at p. 566.)
“[I]t is
appellants’ burden to demonstrate that the alternatives analysis is
deficient. ‘Where an EIR is challenged
as being legally inadequate, a court presumes a public agency’s decision to
certify the EIR is correct, thereby imposing on a party challenging it the
burden of establishing otherwise.’
[Citation.]” (
Santa Cruz (2009) 177 Cal.App.4th 957, 987 (California Native Plant Society).)
Furthermore, under the Guidelines, an EIR need discuss only a range of
reasonable alternatives. (Guidelines
§ 15126.6, subds. (a), (c); California
Native Plant Society, supra, at p. 992; 1 Kostka & Zischke,
pp. 750-751.) “An EIR is not
deficient if it excludes other potential alternatives from its analysis if it
discusses a reasonable range of alternatives.
[Citations.] Each case must be
reviewed on the facts, and the facts must, in turn, be reviewed in light of the
purpose of CEQA’s alternatives requirement.
[Citations.]” (1 Kostka
& Zischke, supra, at p. 750;
citing Goleta II, supra, 52 Cal.3d
553 and Sierra Club v. City of Orange (2008)
163 Cal.App.4th 523, 546.)
A. Alleged “strawmen”
alternatives
Appellants
argue that the draft EIR discussion of the Dolan Lumber site and the Fairmont
site were “strawmen” alternatives because they had been rejected as infeasible
before the environmental review process began.
They argue the Dolan Lumber site alternative was eliminated from
consideration as infeasible on October 3, 2007, and the Fairmont site on
December 12, 2007. They assert that
as these alternatives had been determined to be actually infeasible before the
environmental review process began, they could not be counted among the
required reasonable range of alternatives to be analyzed. We disagree.
The middle
school working group established by the district to investigate, evaluate, and
make recommendations potential sites, eventually recommended that commercial
sites such as the Dolan Lumber site be eliminated from consideration due to the
overall cost and availability of those commercial sites. That determination did not prevent it from
serving as a “potentially feasible” alternative to the project. (Guidelines, § 15126.6.) The Dolan Lumber site was eliminated from
consideration because it was undesirable from a cost and availability
standpoint, not because it was not potentially feasible for CEQA evaluation
purposes. In June 2007, the board
determined to begin anew the process of finding a middle school site. Fairmont had originally been selected to be
the new middle school site, but that decision was reversed and a new process
begun, five major criteria were established, public discussion and debate occurred
and a citizen’s committee (the working group) was established to review the
proposals. That group recommended and
the board selected the Castro Elementary School site as the lead proposal. That the Fairmont site was not considered the
most desirable, did not eliminate it from consideration as a potentially
feasible alternative. Appellants have
pointed to no evidence in the administrative record that either the Dolan
Lumber site or the Fairmont site alternatives were not potentially feasible
alternatives for purposes of environmental analysis.
B. K-8 option
Appellants contend respondents
improperly eliminated the K-8 alternative as infeasible. The district considered, but rejected, nine
additional alternatives as infeasible during the scoping process. The draft EIR contains a brief explanation of
each of these nine alternatives. One of
these was the proposed alternative “Create a K-8 Campus at the Castro
Elementary School Campus.” The EIR
explained that “this concept was rejected because it is not a model that [the
district] currently embraces and would have an effect in terms of number of
students served, number of students in each grade level and other impacts. In addition, the total size of the parcel in
combination with the State requirements for the creation of classrooms, indoor
and outdoor recreation space, and other requirements for a K-8 campus. [Sic.] Lastly, this concept would not create a
campus that would accommodate all of the current Portola Middle School
students, so some of these students would still need to be relocated to other
middle schools within the District.”
Appellants
contend that the K-8 alternative was potentially feasible, but was not analyzed
and that no evidence demonstrated this alternative was not feasible. We disagree.
The district explained why it considered this alternative (and another
proposed alternative that all middle schools be closed and all elementary
schools be converted to K-8) to be infeasible.
The district’s infeasibility findings are entitled to “great
deference.” (California Native Plant Society, supra, 177 Cal.App.4th at
p. 997.) “They ‘are presumed
correct. The parties seeking mandamus
bear the burden of proving otherwise, and the reviewing court must resolve reasonable
doubts in favor of the administrative findings and determination.’ (Sierra
Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497,
19 Cal.Rptr.3d 1.)” (
Moreover,
appellants’ argument assumes that all feasible alternatives must be
considered. This is not the case. As Kostka and Zische observe, “[l]anguage in
several cases implies that an EIR must discuss ‘all reasonable alternatives’ to
the project [Citations.] These
statements, which recite a dictum in Wildlife
Alive v. Chickering (1976) 18 C[al.]3d 190,
197 . . . , an exemption case, are inconsistent with the
Guidelines standard providing that an EIR should contain a reasonable range of
alternatives sufficient to foster informed decision making. [(Guidelines] § 15126.6[,subd.] (a).[)] Under the applicable standard, an EIR may be
found legally inadequate only if the range of alternatives it presents is
unreasonable in the absence of the omitted alternatives.” (1 Kostka & Zische,
In the words of the Court of
Appeal in California Native Plant
Society, supra, 177 Cal.App.4th 957:
“We find no violation of CEQA’s informational mandates in the
alternatives analysis. The EIR presented
sufficient information to explain the choice of alternatives and the reasons
for excluding [the proposed alternatives].
The information ‘did not preclude informed decisionmaking or informed
public participation and thus did not constitute a prejudicial abuse of
discretion.’ [Citation.] [¶] As to the [public agency’s]
substantive decisions concerning which alternatives to analyze and which to
omit, we find sufficient evidence in the administrative record as a whole to
support those determinations. Judged
against the rule of reason that governs our review, a reasonable range of
alternatives was selected for analysis in the EIR; ‘no more was required.’ [Citation.]”
(Id. at p. 995.)
VI. Alleged Brown Act Violations
Appellants argue that
respondents violated the Brown Act as the agenda failed to specify the business
to be transacted and the board failed to state explicitly the board’s approval
of the project as a separate and distinct action from certification of the
EIR. The trial court found no
violation. To the extent the facts here
are undisputed, we review the trial court’s determination of the asserted Brown
Act violations de novo. (
Benefits Committee (2011)
200 Cal.App.4th 972, 978.)
The agenda
for the December 10, 2008 board meeting with respect to this action item
was captioned: “Compliance with the
California Environmental Quality Act:
Adopt Resolution 45-0809 Authorizing Adoption of the Final Environmental
Impact Report for the Construction and Renovation of
| Description | Michael D. Srago and other individuals[1] appeal from a judgment of the Contra Costa County Superior Court filed March 15, 2011, in consolidated actions in which appellants sought a writ of mandate and also sought declaratory relief against respondent West Contra Costa Unified School District (district) and the district’s Board of Education (board) for asserted violations of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA))[2] and the Ralph M. Brown Act (Gov. Code, § 54950.5 et seq.) (Brown Act). Appellants challenged respondents’ actions in choosing to retrofit Castro Elementary School as a new replacement site for Portola Middle School, after the middle school was determined to be structurally unsafe. |
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