131 Cal.Rptr.2d 379, 3 Cal. Daily Op. Serv. 2093, 2003 Daily
Journal D.A.R. 2725
OF CAVITT RANCH et al., Plaintiffs and Appellants,
COUNTY OF PLACER, Defendant and Respondent; BAYSIDE
COVENANT CHURCH, Real Party in Interest and Respondent.
Court of Appeal,
Third District, California.
Mar. 7, 2003.
for partial publication. [FN*] ]
FN* Pursuant to California Rules of Court, rules 976(b)
and 976, this opinion is certified for publication with the exception of parts
II. B., C. and D., III, IV, and V of the Discussion
**380 *1094 Farmer, Murphy, Smith & Alliston, George E. Murphy; Law Offices
of William D. Kopper and William D. Kopper for Plaintiffs and Appellants.
*1095 Anthony La Bouff, County Counsel, and Valerie D. Flood, Deputy County
Counsel, for Defendant and Respondent.
Morrison & Foerster and J. Michael Stusiak for Real Party in Interest and
Defendant County of Placer (County) certified a final environmental impact
report (FEIR) and approved a conditional use permit (CUP) allowing real party
in interest Bayside Covenant Church (Bayside) to proceed with construction of
church facilities on 34.6 acres of unimproved property between Sierra College
Boulevard and Cavitt-Stallman Road in South Placer County. The Bayside
construction was one of two undertakings reviewed in the draft environmental
impact reports (DEIRs) prepared by the County. Neighbors of Cavitt Ranch, an
association composed of nearby property owners, and Steven H. Gurnee, an
individual property owner (collectively Neighbors), sought relief in superior
court. The court denied their petition for writ of mandate.
On appeal, the Neighbors argue County did not comply with procedural
requirements of the California Environmental Quality Act (Pub. Resources Code,
§ 21000 et seq.) (CEQA). [FN1] Central to the procedural challenge is the
Neighbors' claim CEQA required County to prepare separate environmental impact
reports (EIRs) for Bayside's proposed construction and a residential
development promoted by Elliott Homes, Inc. (Elliott), the former owner of both
parcels. Alternatively, the Neighbors argue County's decision to approve the
Bayside project is not supported by substantial evidence. They also maintain
the project's inconsistencies with the Granite Bay Community Plan (GBCP) and
the Placer County General Plan (General Plan) voided project approval.
FN1. Undesignated statutory references are to
the Public Resources Code. The CEQA Guidelines, set forth in California Code of
Regulations, title 14, section 15000 et seq., are cited as
We affirm the judgment for reasons we shall explain.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1997, Elliott
submitted its initial project application to the planning department, and
sought approval to develop 209.3 acres of grazing land the company **381
owned in South Placer County. The project had two *1096 elements.
The first was Cavitt Ranch Estates, 31 residential/ agricultural lots on the
northern 174.7 acres. The second, Bayside Covenant Church, involved development
of church facilities on the southern 34.6 acres.
Environmental review proceeded apace. County completed the initial study on
September 5, 1997, and determined that an EIR would be required. The planning
department, as lead agency, forwarded notice of preparation of a DEIR to the
state clearinghouse, designated agencies, and interested parties on December 3,
1997. That document described the project as "a proposal for development
of 31 single family residential-agricultural lots on 174.7 acres and
development of a church on 34.6 acres." The 30-day public review period
began on December 3, 1997.
Comments received from various agencies and nearby residents during public
review of the Cavitt Ranch Estates and Bayside Covenant Church project were
addressed in "Administrative Draft No. 2 Environmental Impact Report"
dated December 3, 1998, and the "[Draft] Environmental Impact Report"
dated March 23, 1999 (collectively the CRE/BCC DEIRs). These documents
explained that the Bayside portion of the project would be constructed in two
phases "allowing development to coincide with growth of the
congregation." Phase 1 included three buildings totaling 71,000 square
feet, 926 parking spaces, driveways, and landscaping. Phase 2 consisted of
three additional buildings totaling 102,000 square feet and 789 parking spaces.
The 3,500-seat auditorium proposed in phase 2 would be used primarily for
Sunday services. The CRE/BCC DEIRs identified areas of controversy relating to
the Bayside portion of the project, including concerns that "the proposed
church [was] too large for the location," that it "[would] generate
too much traffic on local roadways," and it "conflict [ed] with GBCP
policies." County published a notice of availability of the CRE/BCC DEIRs
for public review on April 9, 1999.
County produced the final environmental impact report for both project elements
on June 6, 2000 (the CRE/BCC FEIR). It issued a notice of public hearing before
the planning commission on July 13, 2000, regarding the CRE/BCC FEIR, general
plan amendment, and rezoning for Cavitt Ranch Estates. A corrected notice of
public hearing assigned a new time for the July 13 hearing. It also included
the following statement: "THIS HEARING WILL BE TO CONSIDER CERTIFICATION
OF AN ENVIRONMENTAL DOCUMENT AND APPROVAL OF LAND USE ENTITLEMENTS ONLY
FOR THE PROPOSED CAVITT RANCH ESTATES SUBDIVISION. COMMENTS AT THIS HEARING
SHOULD BE RESTRICTED TO ISSUES PERTAINING ONLY TO THE CAVITT RANCH
ESTATES PROJECT." (Underscoring in original.) The notice continued:
"A separate *1097 public hearing will be held at a future
date to consider a separate environmental document for the Bayside Covenant
Church and to consider the land use entitlement application for the Bayside
Covenant Church project. The hearing for the Bayside Covenant Church will be
duly noticed. The public will be provided with a full opportunity to submit
comments pertaining to the Bayside Covenant Church prior to and at the hearing
for that project."
The planning commission approved the Cavitt Ranch Estates development at the
July 13, 2000, meeting, but denied Elliott's request for a variance. The
planning commission's CEQA findings of fact and statement **382
of overriding considerations dated July 2000 explained how County provided for
separate consideration and approval of the two elements of Elliott's original
project: "In the original version of the Draft EIR for the Project, the
County simultaneously analyzed a separate project then under common ownership:
the Bayside Covenant Church Project, which Elliott Homes has since sold to the
Church proponents. Although the Final EIR [CRE/BCC FEIR], consisting mainly of
comments and responses, continues to address both projects, the County has
reissued a single Draft EIR [CRE DEIR] to address only the Cavitt Ranch
project. This 'new' document is not really new, but rather largely consists of
those portions of the original Draft EIR addressing only the Cavitt Ranch
Estates project (with some additional information on project alternatives). The
County took this step to allow the two projects to be processed and considered
separately, and to emphasize to the public that, though they were formerly
under common ownership, and thus were related in that sense, the County has the
power and authority to address them separately."
Elliott appealed the denial to the board of supervisors. Following a public
hearing on September 19, 2000, the board approved Cavitt Ranch Estates with the
variance, and certified the Cavitt Ranch Estates portion of the CRE/BCC FEIR.
Meanwhile, on August 16, 2000, Bayside filed its separate project application
and request for a CUP as owner of the 34.6-acre parcel where the church
facilities were to be built. County issued what it called "Reprinted
Environmental Impact Report [for] Bayside Covenant Church" (BCC DEIR) on
September 22, 2000. The introduction to the BCC DEIR explained: "This
document is a reprint of the Draft EIR prepared and circulated for the Cavitt
Ranch Estates and Bayside Covenant Church project. This document includes
corrections and clarifications presented in the Final EIR. In response to
public comments, Placer County has decided to consider the major components of
the proposed project individually, i.e., the County will consider the proposed
Bayside Covenant Church separately from the proposed *1098 Cavitt
Ranch Estates residential subdivision. The adequacy of the CEQA environmental
analysis as it pertains to each proposed development will be considered in
conjunction with that project. Accordingly, this reprinted document only
includes the portion of the original Draft EIR that pertains to the Bayside
Covenant Church project. A similar environmental document is being prepared for
the Cavitt Ranch Estates project." County indicated it would "accept
written comments on this Draft EIR during a CEQA mandated 45-day public review
County noticed the planning commission's October 11, 2000, public hearing on
Bayside's part of the CRE/BCC FEIR and CUP. A memo from the planning
department's review committee explained the revised procedure to the planning
commission: "A Draft EIR was prepared for a joint development project,
which included the recently-approved Cavitt Ranch Estates rural subdivision,
located north of this site, and the proposed church site. Originally the County
accepted the application as one development project since at the time, they
were both under a single ownership and nearly contiguous, excepting for a
single parcel (4+- acres) that separated the two projects. However, the project
site was later sold to the church and is now under separate ownership from the
northerly portion. [¶] In order to allow the decision-makers and other
interested parties an opportunity to consider each proposal independently, the
Draft EIR has been reprinted to include only **383 those portions
applicable to each project. The Final EIR includes all the responses to
comments received on the Draft EIR for both projects."
By this stage, Bayside had revised its development plans. The new phasing data
described construction of 94,500 square feet of building space and 833 parking
spaces in phase 1, and construction of 78,500 square feet of building space and
516 parking spaces in phase 2. The planning commission voted four to three to
deny the CUP "based on inconsistency with the Granite Bay Community Plan's
policies regarding intensity of use and incompatibility with the adjoining
rural residential neighborhood." It took no action to certify the CRE/BCC
Bayside appealed the planning commission's adverse decision to the board of
supervisors. County noticed the public hearing to be held on November 21, 2000.
It described Bayside's project as the "development of a church campus,
including six buildings (ultimate capacity for 5,000+- persons) to be developed
in two phases. PHASE 1 is proposed to consist of three buildings
(94,500+- sq. ft.)--a multi-purpose/gymnasium building and two
meeting/classroom buildings. PHASE 2 is proposed to consist of three
buildings (78,000+- sq. ft.)--an auditorium and two multi-purpose/classroom
buildings. Additional facilities include a softball/soccer field, a play area
for pre-school children, and 1,550 parking spaces." (Bold print in
*1099 During the board of supervisors' meeting, Bayside abandoned
its two- phase plan to construct 173,000 square feet of church facilities, and
sought approval for construction of only three buildings totaling 94,500 square
feet. The board certified the Bayside portion of the CRE/BCC FEIR and granted
the CUP by a vote of four to one. County filed its notice of determination on
November 22, 2000.
Neighbors filed a timely petition for writ of mandate in superior court. They
alleged numerous violations of CEQA and local planning and zoning laws, and
requested: (1) a peremptory writ of mandate ordering County to vacate its
certification of the BCC FEIR, and (2) an order to set aside County's approval
of the CUP.
The court denied the requested relief. Among other things, the court rejected
the Neighbors' claim County violated CEQA by including two projects in one EIR
and certifying the same EIR twice. It found that "[a]lthough the process
used [ ] seems to be novel, it does not appear to have been either unauthorized
or prejudicial to the [Neighbors'] interests. The fact that the Board of
Supervisors certified the final EIR with regard to the housing project first
did not necessarily bind them to approval of the same EIR with regard to the
church property. It appears from the record that the Board of Supervisors
understood that they had discretion whether to certify the final EIR with
regard [to] the Church project or not, and exercised that discretion."
The Neighbors appealed. We denied their April 2002 request for immediate stay
and petition for writ of supersedeas. On September 25, 2002, we denied the
Neighbors' renewed petition for writ of supersedeas and motion for immediate
stay of construction.
Standard of Review
The general question raised
in this appeal is whether County's environmental review of the Bayside project
involved a prejudicial abuse of discretion. **384 " 'Abuse
of discretion 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.' " (Laurel Heights Improvement Assn. v. Regents
of University of California (1988) 47 Cal.3d 376, 392, and fn. 5, 253
Cal.Rptr. 426, 764 P.2d 278 (Laurel Heights I ); see §§ 21168, 21168.5.)
*1100 Under this standard, " '[t]he court does not pass upon
the correctness of the EIR's environmental conclusions, but only upon its
sufficiency as an informative document.' [Citation.]" (Laurel Heights
I, supra, 47 Cal.3d at p. 392, 253 Cal.Rptr. 426, 764 P.2d 278.) We apply
the same scope and standard of review as the trial court, and its findings are
not binding on us. (Fat v. County of Sacramento (2002) 97 Cal.App.4th
1270, 1277, 119 Cal.Rptr.2d 402 (Fat ).)
The Neighbors urge us "to set a bright-line rule that the procedural
irregularities of the type that occurred in this case are a per se violation
of CEQA." We decline the invitation. The Legislature's statement of policy
under CEQA expressly rejects both the conventional harmless error standard and
a per se standard of prejudice. Section 21005 provides: "(a) ...
[N]oncompliance with the information disclosure provisions of this division
which precludes relevant information from being presented to the public agency,
or noncompliance with substantive requirements of this division, may
constitute a prejudicial abuse of discretion within the meaning of Sections
21168 and 21168.5, regardless of whether a different outcome would have
resulted if the public agency had complied with those provisions. [¶] (b)
... [I]n undertaking judicial review pursuant to Sections 21168 and 21168.5,
courts shall continue to follow the established principles that there is no
presumption that error is prejudicial." (Emphasis added.) Whether a
procedural violation involves a prejudicial abuse of discretion turns on
whether the error resulted in the omission of relevant information from the
environmental review process--even where the information would not have altered
the agency's ultimate decision to approve a project. (Rural Landowners Assn.
v. City Council (1983) 143 Cal.App.3d 1013, 1020-1021, 1023, 192 Cal.Rptr.
325 (Rural Landowners ); see also East Peninsula Ed. Council, Inc. v.
Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174,
258 Cal.Rptr. 147.)
The California Supreme Court approved this line of reasoning in Sierra Club
v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236-1237, 32 Cal.Rptr.2d
19, 876 P.2d 505 (Sierra Club ). In that case, the Department of Fish
and Game denied timber harvesting plans submitted by Pacific Lumber Company
(Pacific Lumber) after it refused to provide information on old-growth-
dependent wildlife species. Pacific Lumber appealed to the Board of Forestry,
which approved the plans on the incomplete record. (Id. at p. 1219, 32
Cal.Rptr.2d 19, 876 P.2d 505.) The Sierra Club challenged the board's decision.
(Id. at pp. 1225-1226, 32 Cal.Rptr.2d 19, 876 P.2d 505.) The Supreme
Court explained that courts will set aside an agency decision "[o]nly if
the manner in which an agency failed to follow the law is shown to be
prejudicial, or is presumptively prejudicial, as when the department or the
board fails to comply with mandatory procedures, ..." (Sierra Club,
supra, at p. 1236, 32 Cal.Rptr.2d 19, 876 P.2d 505.) The court held that
prejudice was presumed where *1101 "[t]he absence of any
information regarding the presence of the four old-growth-dependent species on
the site frustrated the purpose of the public comment provisions of the Forest
Practice Act. [Citation.] It also made any meaningful assessment of the
potentially significant environment **385 impacts of timber harvesting
and the development of site-specific mitigation measure impossible." (Id.
at pp. 1236-1237, 32 Cal.Rptr.2d 19, 876 P.2d 505.)
In determining whether an agency has complied with CEQA's procedural
requirements, courts consider " ' "whether an objective, good faith
effort to so comply is demonstrated." ' " (Fat, supra, 97
Cal.App.4th at p. 1277, 119 Cal.Rptr.2d 402.) However, a good faith effort to
comply with CEQA will not prevent a finding of prejudicial abuse of discretion
where the agency's actions result in the omission of relevant
information. (Rural Landowners, supra, 143 Cal.App.3d at p. 1022, 192
Cal.Rptr. 325.) "While the guidelines allow for flexibility of action
within their outlines, they are not to be ignored." (Ibid.)
We accord more deference to agency decisions on substantive questions, and
" 'resolve reasonable doubts in favor of the administrative finding and
decision.' " (Laurel Heights I, supra, 47 Cal.3d at p. 393, 253
Cal.Rptr. 426, 764 P.2d 278.) "Substantial evidence" in the context
of CEQA is defined as "enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached."
(Guidelines, § 15384, subd. (a).) Thus, "[a] 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. [Citation.] A court's task is not to
weigh conflicting evidence and determine who has the better argument when the
dispute is whether adverse effects have been mitigated or could be better
mitigated. We have neither the resources nor scientific expertise to engage in
such analysis, even if the statutorily prescribed standard of review permitted
us to do so. Our limited function is consistent with the principle that 'The
purpose of CEQA is not to generate paper, but to compel government at all
levels to make decisions with environmental consequences in mind.' " (Laurel
Heights, I, supra, 47 Cal.3d at p. 393, 253 Cal.Rptr. 426, 764 P.2d 278.)
We review the interpretation and application of CEQA as questions of law. (Fat,
supra, 97 Cal.App.4th at p. 1277, 119 Cal.Rptr.2d 402.)
Requirements of CEQA
As we explained, the environmental review of the Bayside project
involved two combined CRE/BCC DEIRs dated December 3, 1998, and *1102
March 23, 1999, the separate BCC DEIR prepared in September 2000 after Bayside
acquired the church property, and the combined CRE/BCC FEIR dated June 6, 2000,
certified by the board of supervisors on November 21, 2000.
The Neighbors allege County committed four procedural violations in its
environmental review, and argue the process was prejudicial as a matter of law.
Specifically, they allege County: (1) reviewed two unrelated projects in the
CRE/BCC DEIR; (2) failed to recirculate the BCC DEIR before certifying the
CRE/BCC FEIR; (3) failed to certify separate FEIRs for Bayside Covenant Church
and Cavitt Ranch Estates, and certified the same FEIR twice; and (4) violated
CEQA's notice requirements.
Our task is to determine whether County complied with the requirements of CEQA,
and, if not, whether its violations resulted in the omission of relevant
information from the environmental review process. (Sierra Club, supra,
7 Cal.4th at pp. 1236-1237, 32 Cal.Rptr.2d 19, 876 P.2d 505; Rural
Landowners, supra, 143 Cal.App.3d at p. 1022, 192 Cal.Rptr. 325.) **386
Having carefully reviewed the record in light of the language of CEQA and the
Guidelines, we conclude County's environmental review satisfied the procedural
requirements of CEQA. In any event, none of the alleged violations deprived the
public or local agencies of information relevant to the Bayside project.
Accordingly, there was no abuse of discretion.
A. Two Projects/One EIR:
Our analysis of the Neighbors' first procedural challenge is limited to the
question whether County violated CEQA by including both elements of Elliott's
proposed development in one DEIR. We consider separately the propriety of
County's actions after Bayside submitted its own project application to the
Section 21061 states that "[a]n environmental impact report is an
informational document which, when its preparation is required ..., shall be
considered by every public agency prior to its approval or disapproval of a
project. The purpose of an environmental impact report is to provide public
agencies and the public in general with detailed information about the effect
which a proposed project is likely to have on the environment; to list ways in
which the significant effects of such a project might be minimized; and to
indicate alternatives to such a project."
CEQA defines "project" as "an activity which may cause either a
direct physical change in the environment, or a reasonably foreseeable indirect
*1103 physical change in the environment, and which ... [¶] ...
[¶] ... involves the issuance to a person of a lease, permit, license,
certificate, or other entitlement for use by one or more public agencies."
(§ 21065, subd. (c); Friends of Mammoth v. Board of Supervisors (1972) 8
Cal.3d 247, 262, 104 Cal.Rptr. 761, 502 P.2d 1049.) The Guidelines elaborate on
this definition of "project," stating it means "the whole of an
action, which has a potential for resulting in either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the
environment, ..." (Guidelines, § 15378, subd. (a).)
The Neighbors argue "[t]he two Projects, Bayside's Church and Cavitt Ranch
Estates, cannot fit within the language of 'an activity', because they are not
one activity. They are two different activities. Each project required vastly
different governmental approvals." Neighbors cite Guidelines section 15161
and Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316, 8
Cal.Rptr.2d 473, which state that project EIRs examine the environmental impact
of "a specific development project." They insist that under the
" 'plain meaning rule' both CEQA and the CEQA Guidelines should be
interpreted so that the term project includes one development activity
undertaken by one person." Because the two elements of Elliott's original
project were unrelated, the Neighbors say they required separate DEIRs.
Neighbors do not, however, cite any provisions of CEQA or the Guidelines that
prohibit inclusion of two distinct project elements in a single DEIR. Nor do
they argue that Bayside Covenant Church and Cavitt Ranch Estates elements had
different direct or indirect impacts on the environment. Environmental impact
is the fundamental question addressed by an EIR. (§ 21061.) Here, the
174.7-acre residential parcel and the 34.6-acre church parcel were situated
along the same stretch of Sierra College Boulevard, separated by only a 4-acre
parcel. As such, they comprised the whole of Elliott's proposed action at the
time he submitted his initial project application. (Guidelines, § 15378, subd.
(a).) The EIR focuses on environmental effects, and provides information to
"every public agency prior to its approval or disapproval of a project."
**387 (§ 21061.) Thus, it is of no consequence that the two parts
of Elliott's project sought different approvals and permits from the County. At
worst, the inclusion of both elements in a single DEIR resulted in too much
information regarding environmental effects, not too little. [FN2] We therefore
conclude County did not violate CEQA in the circumstances of this case.
FN2. CEQA and the Guidelines encourage agencies
to draft environmental documents in clear language and format. (§ 21003,
subd.(b); Guidelines, §§ 15006, subds. (q) & (r), 15120, 15140.) One danger
in providing too much information is that it will confuse the reader. The
Neighbors do not argue the public or the agencies were confused by County's
inclusion of two elements of Elliott's proposed development project in a single
DEIR. Their claims of confusion are directed to the alleged notice violations,
and which hearings were to consider the Bayside project.
*1104 B.-D. [FN**]
FN** See footnote *, ante.
The judgment is affirmed.
We concur: SIMS, Acting P.J., and RAYE, J.
Cal.App. 3 Dist.,2003.
Neighbors of Cavitt Ranch v. County of Placer
131 Cal.Rptr.2d 379, 106 Cal.App.4th 1092, 3 Cal. Daily Op. Serv. 2093, 2003
Daily Journal D.A.R. 2725