CITY OF MOUNT SHASTA et al., Respondents,
C.D.M.S., Real Party in Interest and Respondent.
198 Cal.App.3d 433
No. 3 COO0810.
Court of Appeal, Third District, California.
Feb. 8, 1988.
Unincorporated nonprofit association composed of landowners, taxpayers and residents of city, and one individual filed petition for mandate, seeking an order compelling city to set aside its rezoning of 35-acre parcel for failure to comply with the California Environmental Quality Act. The Superior Court, Siskiyou County, James E. Kleaver, J., denied the petition, and petitioners appealed. The Court of Appeal, Carr, J., held that: (1) city violated the Act by failing to make findings adopting or rejecting proposed mitigation measures for environmental impacts identified by environmental impact report regarding development of parcel; (2) city was required by the Act to evaluate proposed alternatives before adopting a statement of overriding considerations for development of parcel which contained wetlands; and (3) city should also have considered possible physical deterioration of the downtown area resulting from development project.
Reversed with directions.
Remy & Thomas, Michael H. Remy and James G. Moose, Sacramento, for petitioners and appellants.
John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Theodora Berger, Asst. Atty. Gen., Ken Alex and Clifford Rechtschaffen, Deputy Attys. Gen., amicus curiae on behalf of petitioner and appellant.
David E. Otis, City Atty., Mount Shasta, Orrick, Herrington & Sutcliffe, Gilbert R. Serota, Jennifer L. Machlin, and Tomme R. Young, San Francisco, for respondents and real party in interest.
CARR, Associate Justice.
In this action petitioners, an unincorporated nonprofit association
composed of landowners, taxpayers and residents in and around Mt. Shasta,
and one individual challenge the actions of the City Council of Mt. Shasta
(City) in the reclassification of a 35-acre parcel of land located within
the City. After City amended its general plan and rezoned this tract of
land, petitioners filed a petition for mandate, seeking an order compelling
City to set aside its actions for failure to comply with the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.). The trial court denied the petition. Petitioners appeal contending
(1) City failed to comply with numerous procedural requirements of the
CEQA (2) the trial court erred in refusing to tax costs, and (3) plaintiffs
are entitled to attorneys' fees pursuant to Code of Civil Procedure section
1021.5. The Attorney General's office on behalf of the People have, with
permission, filed an amicus curiae brief in support of petitioners.
FN1 All further statutory references are to the Public Resources Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Initially, a brief overview of CEQA is required. This legislation was and is a response to "a general and growing awareness and acceptance of the importance of the natural environment in the lives of [California] citizens, and the vital necessity of its protection and preservation." (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 802, 108 Cal.Rptr. 377.) The Legislature found the preservation of a quality environment to be a matter of statewide concern (§ 21000, subd. (a)) and stated that all state agencies must give "major consideration" to preventing environmental damage when regulating activities affecting the quality of the environment. (Id., subd. (g).) Among the enumerated policies of the state is the requirement that all governmental agencies "consider qualitative factors as well as economic and technical factors and long-term benefits and costs, in addition to short-term benefit and costs and ... consider alternatives to proposed actions affecting the environment." (§ 21001, subd. (g).) To meet these goals, CEQA and its Guidelines (Cal.Admin.Code, tit. 14, § 15000 et seq. (hereinafter "Guidelines")) outline a comprehensive scheme to evaluate potential adverse environmental effects.
If a project falls within the purview of CEQA, the agency must decide whether it has a significant effect on the environment, defined as "a substantial, or potentially substantial, adverse change in the environment." (§ 21068.) If no such effects are predicted, the agency must file a "negative declaration" stating as much. If adverse effects are possible, the agency must prepare an environmental impact report (EIR). (Guidelines, § 15002, subd. (a)(1).)
"In many respects the EIR is the heart of CEQA. The report ... may be viewed as an environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return." (County of Inyo v. Yorty, supra, 32 Cal.App.3d at p. 810, 108 Cal.Rptr. 377.) The EIR must "identify the significant effects of a project on the environment, ... identify alternatives to the project, and ... indicate the manner in which those significant effects can be mitigated or avoided." (§ 21002.1, subd. (a).)
After certifying the EIR as completed in compliance with CEQA (Guidelines, § 15090), the public agency may consider the project. However, it should not approve the project as proposed "if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects" of the project. (§ 21002.) The agency must make findings as set forth in section 21081. If the agency finds the mitigation measures or project alternatives infeasible, the agency must adopt a statement of overriding considerations, giving specific reasons to support its decision to proceed with the project. (Guidelines, § 15093.)
With this statutory scheme in mind, we turn to the case at bar.
The instant controversy centers around a 35-acre tract of land located in City near Interstate 5 and owned by real party in interest, C.D.M.S., Inc. The property is undeveloped and consists primarily of wetlands marked by 12 mounds of peat soil and plant life. Under City's general plan, the land was designated as Central Business District and Medium Density Residential, with six acres zoned C-1, Central Business District, and the remainder unzoned.
Public hearings were held and a final EIR was submitted to Council.
The EIR identified 21 potential environmental impacts which might be reduced
to an insignificant level with the adoption of specified mitigation measures.
These effects included, inter alia, increased traffic congestion and soil
erosion, degradation of air and water quality, increased health risks,
and alteration of the site's visual character. The report outlined 35 possible
mitigation measures directed to the 21 potential impacts which could be
mitigated, and identified one significant adverse impact that could not
be mitigated: conversion of wetlands to urban use. Six alternatives to
the proposed project were described, including "No Project" and "Development
of the Non-wetland Area Only."
FN4 The transmittal letter for the EIR identified another five possible measures to be developed "as necessary to enhance the quality of site development, protect the City's fiscal integrity and the physical character of the community, and reduce the impact of the project on the existing central business district."
In October 1985, Council certified the EIR as complete and adopted a statement of overriding considerations concerning the loss of wetlands. Council then unanimously amended the general plan and rezoned the property to C-1 (Central Business District) and C-M (Controlled Manufacturing).
Plaintiff filed a petition for mandate, contending City failed to follow CEQA procedures in making these changes. The trial court denied the petition finding substantial evidence supported City's decisions. This appeal followed.
CEQA must be interpreted "to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049, reiterated in Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 274, 118 Cal.Rptr. 249, 529 P.2d 1017.) "Any review of decisions made pursuant to CEQA or the Guidelines is governed by sections 21168 and 21168.5 of the Public Resources Code, the provisions of which focus such review on (1) whether there is any substantial evidence in light of the whole record to support the decision; and (2) whether the agency making the decision abused its discretion by failing to proceed in the manner required by law." (Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 835, 115 Cal.Rptr. 753.)
Petitioners urge the latter basis for reversal, asserting City failed to comply with several CEQA provisions. Specifically, they contend City (1) failed to make the requisite findings before approving the amendment and rezoning project and (2) gave an inadequate statement of overriding considerations by failing to address project alternatives. They also contend neither the EIR nor City adequately addressed the possible physical deterioration of the current business district as a result of the proposed rezoning. We consider each assertion in turn.
As noted, a project may not be approved as proposed if feasible alternatives or mitigation measures would substantially lessen the project's significant environmental effect. (§ 21002.) Pursuant to this policy, section 21081 provides that "no public agency shall approve or carry out a project for which an environmental impact report has been completed which identifies one or more significant effects thereof unless such public agency makes one, or more, of the following findings: (a) Changes or alterations have been required in, or incorporated into, such project which mitigate or avoid the significant environmental effects thereof as identified in the completed environmental impact report... (c) Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report." These findings must be made for each identified significant effect. (Guidelines, § 15091.)
The reasons for this procedural requirement were outlined in Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 185 Cal.Rptr. 41. "The purposes of section 21081 are that there be some evidence that the alternatives or mitigation measures in the EIR actually were considered by the decision making agency and, as the Supreme Court stated in a similar situation, that there be a disclosure of 'the analytic route the ... agency traveled from evidence to action.' [Citations.] Thus, when a project is approved that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means of lessening or avoiding the project's significant effects and to explain its decision allowing those adverse changes to occur. The writing of a perfect EIR becomes a futile action if that EIR is not adequately considered by the public agency responsible for approving a project. Indeed, it is almost as if no EIR was prepared at all. ... Additionally, even though the board may have fully considered the EIR and made a wise and eminently rational decision in approving the proposed project, the board's thinking process, its 'analytic route,' has not been revealed. Only by making this disclosure can others, be they courts or constituents, intelligently analyze the logic of the board's decision." (Id., at pp. 1034-1035, 185 Cal.Rptr. 41; accord, Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896- 898, 236 Cal.Rptr. 794, rev. den. July 29, 1987; see also Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 361-362, 173 Cal.Rptr. 390.)
Petitioners assert City failed to make the requisite findings. This contention has merit.
The EIR identified 22 significant environmental effects for the proposed
project, 21 of which could be mitigated. In certifying the EIR, Council
noted the report addressed all agency and public comments and outlined
mitigation measures addressing potential significant impact. This remark
was reiterated in Council's statement of overriding considerations, set
forth in footnote 9, infra. However, Council did not expressly adopt these
mitigation measures in findings as required by section 21081, subdivision
(a). In fact, no findings were ever made.
FN6 This resolution provided:
City relies inter alia on City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 202 Cal.Rptr. 366, a case inapposite to the instant situation. In Poway, plaintiff contended San Diego made conclusionary and insufficient findings concerning significant environmental effects. (Id., at pp. 1044-1047, 202 Cal.Rptr. 366.) The problem in the instant case is not that City's findings are insufficient but that they are nonexistent.
The minutes of Council's meeting support this conclusion. Council members
apparently believed adoption of the proposed mitigation measures was required
only when a specific development plan was submitted. For example, the Mayor
voted "that any options for the development of the site would be considered
at the time the developer presented some type of developmental plan, then
the options in the E.I.R. would be applied depending on the actual device
is [sic]." Similarly, City argued to the trial court that it was not required
to adopt any of the proposed mitigation measures until a specific developmental
plan was proposed. While detailed mitigation measures may not be possible
before a specific development plan is proposed, general mitigation measures
may be adopted and are in fact suggested in the EIR. (See Christward
Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 193-195, 228 Cal.Rptr.
FN7 The trial court apparently acted under the same erroneous belief. The statement of decision provides: "Petitioners contend that the City did not adequately provide for mitigation of potential significant environmental effects of the rezoning on the [Central Business District]. The Court finds this contention without merit, because substantial evidence in the record demonstrates that the City's approval incorporated the EIR's proposed mitigation measures as appropriate to future development."
Section 21081 is clear: a public agency must incorporate the mitigation
measures, or make other approved findings, before approving a proposed
project with identified significant environmental impact. (Cleary v.
County of Stanislaus, supra, 118 Cal.App.3d at p. 362, 173 Cal.Rptr. 390.)
While City addressed the one impact not susceptible to mitigation--the
loss of wetlands--in its statement of overriding consideration, it did
not expressly adopt or reject any of the proposed mitigation measures.
This error compels reversal. (Resource Defense Fund, supra, 191 Cal.App.3d
at pp. 897-898, 236 Cal.Rptr. 794.)
FN8 The People contend City failed to consider one potentially feasible measure to mitigate the loss of wetlands: the restoration, creation or enhancement of an equivalent amount of wetlands. This policy, known as "adequate compensation" has been adopted by various state agencies; a similar measure was proposed when the draft EIR was circulated. The final EIR concluded this suggestion was simply "a statement of opinion; no response is required."
We address petitioners' remaining contentions for the guidance of City and the trial court.
Petitioners assert City erred in failing to address alternatives to the proposed project before issuing its statement of overriding considerations. We agree.
The EIR opined that no mitigating measures were available to prevent
the loss of wetlands caused by the proposed project. Again, City failed
to make a finding concerning this impact as required by section 21081.
It did, however, adopt a statement of overriding considerations asserting
its justifications for proceeding with the project. While this statement,
set forth in full in the margin, discussed the advantages of the C.D.M.S.
site, it made no mention of any of the six alternatives to the project
outlined in the E.I.R., i.e., (1) no project, (2) development of the non-wetland
area only, (3) residential use, (4) alternate project design, (5) periodic
land use inventory review and promotion of infill, and (6) option design.
Alternatives 1 and 2 were labelled "environmentally superior alternatives."
FN9 This resolution provided:
Section 21081 and Guidelines section 15091 require an agency to make findings for each significant environmental effect. Loss of wetlands was one such impact, for which no mitigation measures were proposed. At least two of the alternatives identified, however, bore on this issue: no project and development of nonwetland area only. Given these suggested alternatives and the complete dearth of possible mitigation measures for the wetlands, City was required to find "specific economic, social, or other considerations make infeasible the ... project alternatives identified in the final [environmental impact report]." (Guidelines, § 15091, subd. (3).) It did not do so, and instead simply issued a statement of overriding considerations.
City relies on Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 147 Cal.Rptr. 842. In Laurel Hills, a developer sought approval for a 124-lot subdivision for single family homes. An EIR was prepared identifying various mitigation measures and alternative projects, including one for a 63-unit condominium project. The City reduced the subdivision to 94 lots and adopted the mitigation measure without making any findings concerning the alternative projects.
The court upheld the decision, finding the City was not required to find the alternative project infeasible. "As we see it, the fundamental purpose of CEQA is to prevent avoidable damage to the environment from projects. [Citations.] If this end can be accomplished essentially by the imposition of feasible mitigation measures alone, there is no need to resort to a consideration of the feasibility of environmentally superior project alternatives identified in the environmental impact report. This apparently is the reason why (aside from their joint inclusion in environmental impact reports) mitigation measures and project alternatives are always mentioned together in the alternative rather than in the conjunctive.... Otherwise the fundamental purpose of CEQA would become the mandatory choice of the environmentally best feasible project. We believe ... the appropriate public agency may approve a developer's choice of a project once its significant adverse environmental effects have been reduced to an acceptable level--that is, all avoidable significant damage to the environment has been eliminated and that which remains is otherwise acceptable. In other words, CEQA does not mandate the choice of the environmentally best feasible project if through the imposition of feasible mitigation measures alone the appropriate public agency has reduced the environmental damage from a project to an acceptable level." (Id., at p. 521, 147 Cal.Rptr. 842.)
Laurel Hills is inapposite to the instant case. This is not a situation
in which the imposition of feasible mitigation measures alone can prevent
avoidable environmental damage: no mitigation measures were proposed to
prevent loss of wetlands. City was therefore required to weigh the feasibility
of the identified alternative projects. (See also Village Laguna, supra,
134 Cal.App.3d at pp. 1033-1034, 185 Cal.Rptr. 41.) In its brief, City
offers numerous reasons why these alternatives are unworkable. As petitioners
point out, these issues should have been addressed before the project was
approved, not offered as post-hoc justifications.
FN10.Laurel Hills, supra, has been criticized as misapplying the fundamental precept of CEQA as outlined in Friends of Mammoth, supra, by failing to interpret CEQA to provide the fullest possible protection to the environment within the reasonable scope of the statute's language. (Selmi, Judicial Development of CEQA (1984) U.C. Davis L.Rev. 197, 263-265.) Under Laurel Hills, a project could be approved even when the mitigation measures had a greater adverse environmental impact than a feasible alternative. (Ibid.) Because we find Laurel Hills inapposite to the instant case, we offer no opinion as to its holdings.
Finally, petitioners assert City erred in failing to consider the potential physical effect of the rezoning on the central business area. The EIR pointed out the proposed project may pose a significant economic problem for existing businesses, but offered little analysis of the issue, noting the economic effects of the project were beyond the scope of CEQA.
Guidelines section 15064 mandates that both primary (direct) and secondary (indirect) consequences be considered in determining the significance of a project's environmental effect. (Subd. (d).) The regulation also provides: "Economic and social changes resulting from a project shall not be treated as significant effects on the environment. Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant effect on the environment. Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine that the physical change is a significant effect on the environment...." (Subd. (f).)
Petitioners assert that although the EIR noted possible economic harm to the existing business community from the proposed project, City failed to consider how those economic problems might translate into physical environmental changes. City contends, and the trial court agreed, that no analysis of economic effects was required in the EIR.
An identical dispute was raised in Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 169-170, 217 Cal.Rptr. 893, in which the court held subdivisions (d) and (f) of Guidelines, section 15064 may be interpreted consistently by construing the provisions to mean "the lead agency shall consider the secondary or indirect environmental consequences of economic and social changes, but may find them to be insignificant. Such an interpretation is unequivocally consistent with the mandate that secondary consequences of projects be considered." (Id., at p. 170, 217 Cal.Rptr. 893.) The court further noted that subdivision (f) "expressly gives the agency discretion to determine whether the consequences of economic and social change are significant, which is not the same as discretion to not consider these consequences at all." (Ibid.)
The potential economic problems caused by the proposed project could conceivably result in business closures and physical deterioration of the downtown area. Therefore, on remand, City should consider these problems to the extent that potential is demonstrated to be an indirect environmental effect of the proposed project.
In summary, City failed to make findings adopting or rejecting the proposed mitigation measures for the environmental impacts identified by the EIR. It also failed to evaluate the proposed alternatives before adopting its statement of overriding considerations, or to consider the possible physical deterioration of the downtown area resulting from the project. We must therefore reverse the judgment.
Petitioners contend the trial court erred in denying their motion to
tax costs. Under section 21167.6, petitioners had the option of preparing
the administrative record themselves to minimize expenses.
FN11 Section 21167.6, subdivision (b) provides in relevant part: "The public agency shall prepare and certify the record of proceedings not later than 60 days after the request ... is served upon the public agency. The parties shall pay any costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court. The petitioner may elect to prepare the record of proceedings or the parties may agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the time limit specified in this subdivision."
"a. Documents Retrieval and Copying
(i) Administrative time $136.32
(ii) Photocopying 279.90
"b. Organizing and Indexing 3,727.50
"c. Duplicating and Binding 394.35
TOTAL COST OF ADMINISTRATIVE RECORD $4,538.07"
Petitioners' motion to tax costs was based on two grounds: (1) that City thwarted petitioners' statutory right under section 21167.6, subdivision (b) to elect to prepare the administrative record themselves by refusing to respond to their request for an estimate of the cost to have the record prepared by City and (2) some of the costs included in the preparation of this record related to the preparation of the case for the benefit of City and its attorneys and was not a proper or reasonable charge. This challenge was apparently directed at the organizing and indexing charge.
In response to the motion, City filed a declaration by an attorney from the private firm hired to represent City in this litigation, Tomme R. Young. Ms. Young averred that City had insufficient employees to prepare the record within the time parameters for filing the record; therefore, the organizing and indexing of documents was done by one paralegal and one clerk from the private law firm at $65.00 per hour and $35.00 per hour respectively for a total of 45.5 paralegal hours and 22 hours clerk time. The administrative time spent by City employees was 16 hours at $8.52 an hour.
In ruling on the motion, the trial court found the cost of preparation was necessarily incurred and that petitioners did not elect pursuant to section 21167.6, subdivision (b) to prepare the record. This ruling does not determine all the issues tendered by the motion to tax. The trial court did not determine the costs of preparation were reasonable.
The charge for City employees' time was $8.52 per hour; the charge for
the clerk provided by City's attorneys was $35.00 per hour. Pursuant to
section 21167.6, subdivision (b), City was charged with the preparation
of the record absent a valid election by petitioners to undertake such
preparation. It appears from the charges made by City that its employee
input cost $8.52 per hour, presumably the regular rate paid to such employees.
The cost of 67 1/2 hours to organize and index the record by employees
of City results in a cost of $574.90 for such work, as opposed to the $3,727.50
paid to a $65.00 per hour paralegal and a $35.00 per hour clerk. If it
is claimed the record preparation was accelerated by the employment of
persons expert in this work, the trial court, in the absence of a prior
order fixing compensation, should have determined if it was necessary for
City to employ such experts and whether the cost thereof was reasonable.
On remand, the trial court is directed to make this determination.
FN12 The message here appears to be that it is more financially rewarding to work for a San Francisco law firm than the City of Mt. Shasta.
Finally, plaintiffs seek attorneys' fees under Code of Civil Procedure section 1021.5, asserting their actions have conferred a benefit on the general public. While plaintiffs may have established a colorable claim to attorneys' fees by virtue of their success on appeal, the determination whether Code of Civil Procedure section 1021.5 is applicable, and if so, the appropriate amount of attorneys' fees that are reasonable, is best left to the sound discretion of the trial court in this instance. (Citizens Assn., supra, 172 Cal.App.3d at p. 176, 217 Cal.Rptr. 893.)
The judgment is reversed with directions to the superior court to issue a peremptory writ of mandate directing City to set aside its resolutions adopting the amendment to the general plan and the zoning change of the C.D.M.S. site and on any further proceedings on the EIR, the general plan amendment and zoning change at issue herein to make the necessary findings as set forth in this opinion. The trial court is further directed to grant any further appropriate relief. Plaintiffs shall recover costs on appeal.
EVANS, Acting P.J., and SIMS, J., concur.