William R. Galstan, City Attorney, for Plaintiff and Appellant.
Charles J. Williams and Williams, Caploe & Robbins for Defendant
Robert J. Rossi for Real Party in Interest and Respondent.
The City of Antioch appeals from a judgment of the Contra Costa County Superior Court denying Antioch's petition for a writ of mandate to compel the Pittsburg City Council (City Council) to set aside its negative declaration and prepare an environmental impact report (EIR) for a proposed road and sewer construction project. Antioch contends that Pittsburg violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) when it approved construction of a roadway and appurtenant utilities on the basis of the negative declaration rather than an EIR. Antioch also contends that the project is inconsistent with Pittsburg's general plan and is therefore invalid.
Statement of the Case/Facts
Real party in interest A.D. Seeno Construction Company (Seeno),
the project developer, sought a site development permit from Pittsburg
and the initiation of an assessment district for the construction
of a roadway and appurtenances on three parcels of land owned
by it and located west of Somersville Road, north of Highway 4
in Pittsburg. The property is commonly known as the 'Baker' property.
[FN1] The project consisted of '1. Construction of 'A'
Boulevard which will be 6,400' with an eighty-four (84) foot right-of-
way and sixty-four (64) foot curb separation. 2. Widening of the
west side of Somersville Road along property frontage. 3. Construction
of sanitary sewer system and pump station. 4. Construction of
a culvert at the [U.S. Bureau of Reclamation] open channel. 5.
Construction of underground storm drain system. 6. Construction
of an underground water distribution system. 7. Construction of
underground utility lines.'
FN1 The Baker property is adjacent to Antioch's western
boundary, and abuts Somersville Road which appellants describe
as 'a major arterial for Antioch, which is a high-volume arterial
serving Antioch's commercial centers, proposed industrial uses,
and makes a connection to downtown Antioch.' A portion of Somersville
Road represents the boundary line between the two cities.
On July 16, 1984, Pittsburg prepared an initial study checklist
regarding the project. The checklist concluded that 'although
the proposed project could have a significant effect on the environment,
there will not be a significant effect in this case because the
mitigation measures described on an attached sheet have been added
to the project. A Negative Declaration will be prepared.' Attached
was a one-and-one-half-page explanation as to why impacts identified
in the checklist were not considered significant.
Upon the basis of the initial study checklist, Pittsburg, acting
through its community development director, found that the proposed
roadway was consistent with the circulation element of the general
plan and that the project would not have a significant effect
on the environment. The director therefore determined to issue
a negative declaration. During the public review period for the
negative declaration, Antioch appealed to the Pittsburg City Council.
Following a public hearing on the appeal, the City Council upheld the decision to prepare a negative declaration. The City Council found, in pertinent part, that 'The project does not involve the connection of the proposed street to any other existing street. The project does not involve the construction of buildings or the introduction of any land uses that do not presently exist. The alteration of land for other than the purposes of the project and the introduction of any land use other than that now existing on the parcels described are not covered by the negative declaration proposed in this proceeding and will be the subject of separate land use and other discretionary entitlements which will be the subject of the environmental review process and separate findings as to the existence or non-existence of significant effects on the environment ....' The City Council also found that 'there was no apparent serious public controversy concerning the project and no disagreement between experts over the significance of the effect of the project on the environment. The only comment received was from the BART District relating to the possible location in the vicinity of the project of a transit station. It did not concern environmental effects of the project.' The City Council concluded that 'Based upon the foregoing findings there is no substantial evidence that the project will have a significant effect on the environment.'
On December 26, 1984, Antioch filed a petition for writ of mandate.
On June 3, 1985, the superior court denied the writ, following
a hearing. In a memorandum of decision, the court explained:
'I. The writ is denied. It must be found that the road is in a
very large completely undeveloped area so that, if an EIR is required
because of possible future development almost an infinite number
of potential developments must be considered. Obviously this is
an impossible task. The developer says also that until the road
location is fixed it can't plan future development because future
purchasers-lessees could not commit themselves. The Court is impressed
with Pittsburg's arguments to this effect. [¶] S.F. For Reasonable
Growth v. S.F. [(1984) 151 Cal.App.3d 61 (198 Cal.Rptr. 634)]
is distinguishable. It required, in an EIR report, that the county
consider probable future development. Whitman v. Board[ (1979)
88 Cal.App.3d 397 (151 Cal.Rptr. 866)] is also a writ taken from
approval of an EIR report. Neither case involved a writ taken
from a negative declaration. [¶] Obviously when you are doing
an EIR you must take into consideration cumulative future impacts.
When you do a negative declaration knowing that when actual development
plans are presented an EIR will be done, future impact consideration
is unnecessary. [¶] II. The evidence does not support the
contention that the project is inconsistent with the General Plan.'
A timely notice of appeal followed.
In our recent opinion in City of Livermore v. Local Agency Formation
Com. (1986) 184 Cal.App.3d 531 [230 Cal.Rptr. 867], we reiterated
the principles guiding review under CEQA of an agency's decision
to issue a negative declaration. As we stated, 'CEQA establishes
the administrative procedure of an environmental impact report.
(1)So that the environmental effect of every public agency action
is assessed and evaluated ( No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68, 74-75 ...), EIRs must be prepared for all
'projects' that 'may have a significant effect on the environment.'
(Pub. Resources Code, § 21151.) [¶] ... [¶] The
language of CEQA and its guidelines includes all discretionary
projects that have a direct or ultimate impact on the environment.
[¶] In interpreting the language we are guided by our Supreme
Court's statement in Friends of Mammoth v. Board of Supervisors
(1972) 8 Cal.3d 247, 259 ..., that 'the Legislature intended [CEQA]
to be interpreted in such manner as to afford the fullest possible
protection to the environment within the reasonable scope of the
statutory language.' (See also Bozung v. Local Agency Formation
Com. (1975) 13 Cal.3d 263, 277-279 ....)' (184 Cal.App.3d at
In determining that the impact of the project was significant
enough to require preparation of an EIR in the City of Livermore
case, we adhered to the standard of review set out in Public Resources
Code section 21168 and applied in Friends of 'B' Street v. City
of Hayward (1980) 106 Cal.App.3d 988, 1002 [165 Cal.Rptr. 514],
Newberry Springs Water Assn. v. County of San Bernardino (1984)
150 Cal.App.3d 740, 748 [198 Cal.Rptr. 100], and Citizens Assn.
for Sensible Development of Bishop Area v. County of Inyo (1985)
172 Cal.App.3d 151, 172-173 [217 Cal.Rptr. 893]. (2)As we stated,
'[i]f' it can be fairly argued on the basis of substantial evidence
that the project may have significant environmental impact,' the
agency must prepare an EIR. ( No Oil, Inc. v. City of Los Angeles,
supra., 13 Cal.3d 68, 74-75; see also Cal. Admin. Code, tit. 14,
§ 15064(g)(1).) [¶] Deciding whether a fair argument
can be made requires the agency to weigh the evidence on both
sides of the question. If there is substantial evidence of a significant
environmental impact, evidence to the contrary does not dispense
with the need for an EIR when it still can be 'fairly argued'
that the project may have a significant impact. (Friends of 'B'
Street v. City of Hayward (1980) 106 Cal.App.3d 988, 102 [165
Cal.Rptr. 514].) [¶] Our standard of review of the agency's
decision is set out in Public Resources Code section 21168: '...
the court shall only determine whether the act or decision is
supported by substantial evidence in light of the whole record.'
(See also Code Civ. Proc., § 1094.5.) .... [¶] The 'act
or decision' we review here is not the decision that the project
may or may not have a significant environmental impact, but the
decision that it can or cannot be fairly argued that the project
may have a significant environmental impact. Because our focus
is on the fair argument decision, we must assess both the evidence
in favor of the significant environmental impact and the evidence
to the contrary-only then can we properly decide if the agency's
conclusion regarding the fair argument question is supported by
substantial evidence in light of the whole record.' ( City of
Livermore, supra., at pp. 540-541, italics in original, fn. omitted.)
Respondents argue that the consequences of the instant project
do not fall within the examples of significant effects contained
in the regulation guidelines (appen. G to tit. 14, Cal. Admin.
Code, § 15064, subd. (e)); that the project does not involve
the connection of a road to any other proposed or existing street
(and therefore does not create or complete a circulation pattern);
that no buildings or new land uses are included in the project
and that any land use other than that now existing and any construction
other than that described in the project will be the subject of
further environmental *1332 review; that no substantial body
of opinion considers the effect of the project adverse; and that
generally the project is consistent with the existing general
Initially, we point out that conformity with the general plan
for the area, if such is the case, does not insulate a project
from the EIR requirement, where it may be fairly argued that the
project will generate significant environmental effects. The initial
study checklist and the determination of the community development
director to issue the negative declaration relied heavily upon
the project's asserted conformity with the general plan. [FN2]
FN2 The initial study checklist prepared by the planning division listed in mitigation of possible impacts on road maintenance and certain substantial impacts upon utilities the following: 'Construction of roadway and infrastructure for basic utility support systems will be added to City systems in the future. This is not considered significant as plans are in conformance with City's Master Plans.' Responding to the finding that the project has impacts which are individually limited, but cumulatively considerable, the checklist mitigation measure stated: 'The construction of the roadway will have a cumulative impact of opening the way for future development. This is not considered significant as it is in compliance with the General Plan. Environmental review of all future proposals for the property will occur prior to the approval of development plans.' (Italics added.)
The finding of no significant impact, made by the community development
director was accompanied by the following statement of reasons:
'3. Statement of Reasons to Support the Finding (Mitigation Measures)
[¶] A. General Plan/Land Use Comparability: The project is
consistent with the Circulation Element of the General Plan. [¶]
... [¶] D. Utility Impacts: The project will extend all utility
networks through the site. This is not considered significant
as this has been addressed in the City's Master Plans. Connections
to systems in other jurisdictions will be subject to their approval.'
Government Code section 65402 mandates that a public works project
such as the roadway and utilities contemplated here must be consistent
with the city's general plan. However, there is no indication
in CEQA that mere conformity with the general plan will justify
a finding that the project has no significant environmental effect.
Certainly general plan conformity alone does not effectively 'mitigate'
significant environmental impacts of a project.
Further, the City Council's finding that there was 'no apparent
serious public controversy concerning the project,' if deemed
true, would not of itself support the decision to issue a negative
declaration. (Cf. Citizens Assn. for Sensible Development of Bishop
Area v. County of Inyo, supra., 175 Cal.App.3d 151, 173.) The
Guidelines provide that '[i]n marginal cases where it is not clear
whether there is substantial evidence that a project may have
a significant effect on the environment, the lead agency shall
be guided by the following factors: [¶] (1) If there is serious
public controversy over the environmental effects of a project,
the lead agency shall consider the effect or effects subject to
the controversy to be significant and shall prepare an EIR. Controversy
unrelated to an environmental issue does not require preparation
of an EIR.' (Admin. Code, tit. 14, § 15064, subd. (h)(1);
Pub. Resources Code, § 21082.2.) Only if the case were truly
'marginal' would the public controversy factor be significant.
In short, if it may be fairly argued that the impacts are significant,
the absence of public controversy will not justify the decision
to issue a negative declaration.
The heart of respondents' argument that a negative declaration
is appropriate here is the fact that the proposed roadway will
not at this stage connect with an existing street and thus will
generate no traffic or impacts upon circulation and that the utilities
also will remain unconnected. Respondents also argue that the
proposals for future development will be subject to further environmental
review at the time of development of the surrounding land.
Respondents reason that the project involves no building construction
or introduction of new land uses and that at present it is not
known what type of development will occur on the surrounding undeveloped
land. Thus, as the trial court found, any EIR must consider 'almost
an infinite number of potential developments.' The trial court
focused primarily upon the difficulties of preparing a meaningful
EIR in view of the myriad possibilities for future development
of the surrounding land, rather than upon the cumulative effect
of the road and utility construction as the opening wedge in the
ultimate development of the Baker property.
Under CEQA, the agency must consider the cumulative environmental
effects of its action before a project gains irreversible momentum.
( Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263,
282 [118 Cal.Rptr. 249, 529 P.2d 1017]; City of Carmel-by-the-Sea
v. Board of Supervisors (1986) 183 Cal.App.3d 229, 242 [227 Cal.Rptr.
899].) As the California Supreme Court stated in Bozung v. Local
Agency Formation Com., supra., 13 Cal.3d 263, 282: 'CEQA ... requires
governmental agencies 'at all levels' to consider environmental
factors. Obviously it is desirable that the precise information
concerning environmental consequences which an EIR affords be
furnished and considered at the earliest possible stage. The Guidelines
express this principle in a variety of ways. Thus, 'EIR's should
be prepared as early in the planning process as possible to enable
environmental considerations to influence project, program or
design.' (Cal. Admin. Code, tit. 14, § 15013.)' (See also
City of Carmel-by-the-Sea, supra..)
The requirement of early preparation of an EIR is designed to
avoid the type of piecemeal review in which 'environmental considerations
... become submerged by chopping a large project into many little
ones-each with a minimal potential impact on the environment-which
cumulatively may have disastrous consequences.' ( Bozung, supra.,
at pp. 283-284; Carmel-by-the-Sea, supra., at p. 244.) Here, appellant
rightly fears the type of piecemeal review which occurred in Citizens
Assn. for Sensible Development of Bishop Area v. County of Inyo,
supra., 172 Cal.App.3d 151 (hereafter referred to as County of
Inyo). In that case the county approved a general plan amendment
and zoning classification on the basis of a negative declaration.
As described by the court in City of Carmel-by-the-Sea, 'supra.,
The rationale behind the decision was similar to that advanced
by the agency in Bozung and rejected by the Supreme Court, namely
that preparing an EIR would be premature at the zoning stage since
the tentative map for the project, a shopping center, was not
before the agency. In County of Inyo, when the tentative map was
in fact before the Board it was again recommended that no EIR
was needed since the proposed use now conformed to the existing
zoning. The court of appeal, citing Bozung, found that this approach-
division of the project into two parts with 'mutually exclusive'
environmental documents-was 'inconsistent with the mandate of
CEQA' and constituted an abuse of discretion. ( Citizens Assn.
for Sensible Development of Bishop Area v. County of Inyo, supra.,
172 Cal.App.3d at p. 167.) [¶] County of Inyo cites section
15378, subdivisions (c) and (d) ... interpreting these sections
to mean that an agency cannot term each stage of the development
'a project' with no significant impact and thereby issue a series
of negative declarations when the project as a whole would have
required an EIR. In other words, where the project is a development,
for which various governmental approvals are necessary, '[a]ll
phases of project planning, implementation, and operation must
be considered in the initial study of the project' (Guidelines,
§ 15063, subd. (a)(1)), and an EIR must address all phases.'
( City of Carmel-by-the- Sea, supra., 183 Cal.App.3d at pp. 242-243.)
Respondents, like the responsible agencies in Bozung, County of
Inyo and City of Carmel-by-the-Sea, urge us to look at the proposed
project in a vacuum, arguing that EIR preparation is premature
and assuring us that other phases of development of the entire
property will be accorded appropriate environmental review in
due course. With the courts in the three cases just cited, we
must reject this approach.
The planning department study itself recognized that 'construction
of the roadway will have a cumulative impact of opening the way
for future development.' The location and design of the road and
appurtenant sewage and water distribution facilities will strongly
influence the type of development possible.
The adverse effects and substantial impacts appellant believes
may result from construction of the roadway and related utilities
are set forth in the margin below. [FN3] Respondents do
not so much dispute these possible effects as insist that appellant's
concern is premature, because the project will not now be connected
to existing roads and utilities.
FN3 Antioch's administrative appeal specified several adverse
environmental impacts which may occur as a result of the project.
For example, the traffic impact on Highway 4 and Somersville Road
was expected to be severe, with the freeway interchange expected
to operate at 'level F' in the future. The appeal identified off-street
improvements and highway improvements, safety hazards and train
traffic problems, and impact of a future BART station on the site.
The appeal also noted concerns with noise, impacts on utilities,
and air quality impacts. A number of technical engineering concerns
were also addressed. These included, among others, possible downstream
drainage problems and the fact that Antioch, Pittsburg and Delta
Diablo Sanitation District 'are discussing sewer service that
should provide this property and other properties south with a
gravity sewer system rather than the lift station system proposed.'
It must be acknowledged that it is at this stage impossible to
specify the precise development that will eventually occur or
the actual uses to which the property will be put. This uncertainty
makes it difficult to assess the actual usage of the roadway and
utilities and their impact on the environment. Respondents rely
on these uncertainties in contending that an EIR at this stage
would ''... tend toward uninformative generalities" ( No
Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 77, fn.
5 [118 Cal.Rptr. 34, 529 P.2d 66] quoting from Scientists' Inst.
for Pub. Info., Inc. v. Atomic Energy Com'n (1973) 156 App.D.C.
395 [481 F.2d 1079, 1093].) Respondents' argument that we should
consider the road and related utilities in isolation, unconnected
to any existing or future transportation systems or development
is based upon Brentwood Assn. for No Drilling, Inc. v. City of
Los Angeles (1982) 134 Cal.App.3d 491 [184 Cal.Rptr. 664]. In
Brentwood, the Court of Appeal upheld the decision of the trial
court requiring an EIR for exploratory drilling of a single core
hole. However, in so doing, the appellate court reviewed 'the
decision of the city council to grant [the driller]a conditional
use permit on the basis of a negative declaration rather than
requiring preparation of an environmental impact report ... from
the perspective of the potential impact on the environment of
exploratory drilling rather than full scale production.' ( Id.,
at p. 502.) Evidence before the trial court showed that 55 percent
of core holes were successful and approved. 'Thus, little more
than one-half of all core hole projects culminate in approved
applications for commercial drilling.' ( Id., at p. 502.) For
this reason, the Court of Appeal declined to treat exploratory
drilling as the equivalent of commercial production.
The facts of Brentwood are not analogous to those we confront
here: The location of the Baker property, as well as the desire
of the City of Pittsburg to facilitate its development, render
it virtually certain that additional development will result.
The size, location and configuration of the roadway and utilities
will influence not only the fact but the nature of later development
to a much greater degree than the single test hole at issue in
FN4 This case is also distinguishable from Plan for Arcadia,
Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712 [117
Cal.Rptr. 96] and Newberry Springs Water Assn. v. County of San
Bernardino, supra., 150 Cal.App.3d 740, cited by respondents and
approving the issuance of negative declarations. Plan for Arcadia,
Inc. involved widening of a street. The Court of Appeal upheld
the city's negative declaration concluding that substantial evidence
supported the city's action where a detailed showing was made
of the number of trees and other plantings that would be affected
as well as to the replacement landscape that would take place,
and where comment was made as to air quality and noise impacts.
(Id., at p. 725.) Newberry Springs Water Assn. upheld the city's
issuance of a negative declaration for a dairy, concluding that
plaintiffs presented insufficient evidence to show that a fair
argument for substantial environmental impact could be made. As
stated by the court, 'There is no real evidence in the record,
other than plaintiffs' opinion, that odors or flies will cause
substantial adverse effects on the physical conditions in the
area ....' (Id., at p. 749.) The construction of more than a mile
of 'boulevard,' together with sewer lines and utilities is far
more likely to generate substantial impacts than the street widening
in Plan for Arcadia. Further the challenge raised by Antioch is
supported by more than opinion evidence. The Antioch Director
of Public Works raised serious questions about the project in
his letter to the developer, as did the Assistant City Manager.
The initial study itself recognized that the project had substantial
cumulative impacts in that it was the first step in marketing
and developing the Baker property.
Construction of the roadway and utilities cannot be considered in isolation from the development it presages. Although the environmental impacts of future development cannot be presently predicted, it is very likely these impacts will be substantial. As we stated in City of Livermore, supra., 184 Cal.App.3d 531, in the related context of determining whether a Local Agency Formation Commission's (LAFCO) sphere-of-influence guideline revisions fit within CEQA's broad definition of a 'project': 'It is true that the precise effects [of the revisions] are difficult to assess at this stage, but it is because impact is so easily foreseen that the revisions must be considered a project under CEQA.' ( Id., at p. 538.)
Bozung, Livermore and City of Carmel-by-the-Sea all concerned
projects which did not directly involve construction of structures
or actual development. [FN5] Bozung required an EIR prior
to LAFCO approval of annexation to a city of 677 acres of agricultural
land 'proposed to be used for 'residential, commercial, and recreational'
purposes.' (13 Cal.3d at p. 281.) As earlier indicated, Livermore
held that the Alameda County LAFCO must prepare an EIR prior to
implementing its sphere of influence guideline. City of Carmel-by-the-Sea
required an EIR prior to rezoning. None of these cases hesitated
to require an EIR where significant impacts were a realistic possibility,
even though the exact form that development would take could not
FN5 County of Inyo required preparation of an EIR for county
actions approving general plan amendments, zoning reclassification,
tentative tract map and road abandonment in connection with a
proposed shopping center.
The EIR is designed to provide comprehensive environmental analysis
of the impacts of many different types of projects and at differing
stages of development. EIR requirements must be sufficiently flexible
to encompass these vastly differing projects with varying levels
of specificity. The need for such flexibility was discussed in
City of Carmel-by-the-Sea. There it was argued that '[a]n EIR
at the zoning stage would not be feasible. Environmental impacts
would be too speculative and mitigation measures could not be
given meaningful consideration.' (183 Cal.App.3d 229, 249.) The
court rejected this position contrary to 'a mass of authority
following Bozung v. Local Agency Formation Com., supra., 13 Cal.3d
263.' (Id., at pp. 249-250, fn. omitted.) 'The fact that the environmental
consequences of a rezoning may be more amorphous than those flowing
from a precise development plan does not compel the conclusion
that no EIR is required. The CEQA guidelines recognize that an
EIR for zoning purposes will necessarily be less detailed than
one prepared for a specific construction project. Guidelines section
15146, subdivision (b) provides that '[a]n EIR on a project such
as the adoption or amendment of a comprehensive zoning ordinance
... should focus on the secondary effects that can be expected
to follow from the adoption ... but the EIR need not be as detailed
as an EIR on the specific construction projects that might follow.'
In addition, Guideline section 15152 endorses 'tiering' EIRs so
that later EIRs at subsequent phases of a project need not repeat
material contained in earlier documents. Thus the difficulty of
assessing future impacts of a zoning ordinance does not excuse
preparation of an EIR; such difficulty only reduces the level
of specificity required and shifts the focus to the secondary
effects.' (Id., at p. 250.) We do not believe that the EIR required
in this case must describe in detail each and every conceivable
development scenario. All it must analyze are the road and utility
impacts in relation to the most probable development patterns.
Relying upon section 15064, subdivision (e), of the Guidelines
and Appendix G thereto, which indicate that extension of a sewer
line with capacity to serve a new development will normally be
deemed to have a significant effect on the environment, [FN6]
appellant also claims that construction of the utilities requires
an EIR. Making a distinction we think altogether unjustifiable,
respondent answers that the Guidelines 'refer specifically to
extending a sewer trunk line and not to creating a new sewer system.'
If extension of an existing sewer trunk line will ordinarily have
a significant environmental impact, a fortiori construction of
a new line and pump station will do so. It ignores reality to
contend that a sewer system has no significant impact on the environment
because it will not be connected until some future date. As with
construction of the roadway, it is important to consider prior
to construction issues of location, capacity, type of system and
FN6 Administrative Code, title 14, section 15064, subdivision
(e), provides in pertinent part: 'Some examples of consequences
which may be deemed to be a significant effect on the environment
are contained in Appendix G.' Appendix G provides in relevant
part: 'A project will normally have a significant effect on the
environment if it will: [¶] (s) Extend a sewer trunk line
with capacity to serve new development ....'
In sum, our decision in this case arises out of the realization
that the sole reason to construct the road and sewer project is
to provide a catalyst for further development in the immediate
area. Because construction of the project could not easily be
undone, and because achievement of its purpose would almost certainly
have significant environmental impacts, construction should not
be permitted to commence until such impacts are evaluated in the
manner prescribed by CEQA. As Justice Rouse explained in our opinion
San Franciscans for Reasonable Growth v. City and County of San
Francisco (1984) 151 Cal.App.3d 61 [198 Cal.Rptr. 634], the fact
that a particular development which now appears reasonably foreseeable
may, in fact, never occur does not release it from the EIR process.
( Id., at p. 75.) Similarly, the fact that future development
may take several forms does not excuse environmental review.
In the circumstances of this case, as we have said, it is necessary
to evaluate only the forms and extent of future development that
now reasonably seem most likely to result from the roadway and
utility projects. While Pittsburg cannot be expected to know the
exact level of use of the roadway at such time as it is connected
to existing highways, it must assume a level of use at that time
that now seems probable. Similarly, while Pittsburg need not predict
the precise form, location and amount of commercial and residential
development resulting from construction of the roadway and utilities,
it cannot pretend none will occur; it simply must assume the general
form, location and amount of such development that now seems reasonable
to anticipate, as the developer has doubtless already done, and
evaluate that development by means of the EIR process.
For the foregoing reasons, we conclude that substantial evidence
does not support issuance of the negative declaration as it appears
that construction of the roadway and accompanying utilities may
have a significant impact on the environment. The negative declaration
must therefore be set aside and the City of Pittsburg ordered
to prepare an EIR. [FN7]
FN7 We need not, therefore, address further appellant's
contention that the claimed inconsistency between the project
and the general plan renders the project unlawful.
The judgment is reversed with directions to the superior court
to issue a peremptory writ of mandate directing respondent City
Council top set aside its order adopting the negative declaration
and to prepare an EIR for the project.
Each party to bear its own costs on appeal.
Rouse, J., and Benson, J., concurred.