ANDERSON FIRST COALITION et
al., Plaintiffs and Appellants,
CITY OF ANDERSON et al., Defendants and
Respondents; FHK COMPANIES, INC., et al., Real Parties in Interest.
COURT OF APPEAL, THIRD APPELLATE
a judgment of the Superior Court of Shasta County, Monica Marlow, Judge. Affirmed in part and reversed in part.
Herum Crabtree Brown, Steven A. Herum and Brett S. Jolley
for Plaintiffs and Appellants.
Fitzpatrick Law Offices and Michael C. Fitzpatrick for
Defendants and Respondents.
Steefel, Levitt & Weiss, Arthur J. Friedman and Judy V.
Davidoff for Real Party in Interest.
DAVIS, Acting P.J.
action under the California Environmental Quality Act (Pub. Resources Code, §
21000 et seq.; hereinafter CEQA) and planning and zoning law, the plaintiffs,
which comprise the Anderson First Coalition, along with two individuals, Kathy
Grissom and John Wade (collectively, Anderson Coalition or the Coalition),
challenge the approval by the City Council of the City of Anderson
(collectively City) of a shopping center project. The project is anchored by a Wal-Mart Supercenter store (Wal-Mart Stores, Inc.
(Wal-Mart or Wal-Mart Supercenter) and the project’s applicant and
developer, FHK Companies, Inc. (FHK), are real parties in interest here).
Anderson Coalition claims (1) the trial court’s judgment violated CEQA by
severing a CEQA-deficient gas station from the project, allowing the rest of
the project to proceed; (2) the environmental impact report (EIR) inadequately evaluated urban
decay, traffic, and hydrology impacts; and (3) the project is inconsistent with
City’s general plan and City’s zoning code.
We reverse the judgment as to the project’s fair-share mitigation fee
for improvements to a freeway interchange, and specify certain requirements for
this fee to be sufficient under CEQA; in all other respects, we affirm.
and Standard of Review
2003, City approved the Anderson Marketplace Project (the Project) after
certifying the final EIR for it. The Project
is adjacent to State Highway 273 and is about 600 feet west of Interstate
5 (I-5); it is situated in the quasi-rural southwest portion of the City
adjoining present City development. The
Project encompasses 26 and a half acres; it is comprised of an approximately
184,000 square-foot Wal-Mart Supercenter, three other commercial-retail pads
totaling 21,700 square feet, and a size-unspecified 12-position gas station. (Supercenters generally operate 24 hours per
day and combine a full Wal-Mart merchandise discount store with a full
supermarket.) Land use approvals
necessary for the Project included a general plan amendment and rezone (to
change eight of the acres from residential to highway commercial), a parcel
map, and a conditional use permit.
Coalition petitioned for a writ of mandate, challenging City’s approval of the
Project on the environmental grounds noted above in the introduction. The trial court granted the petition to the
extent that the traffic (vehicle trip-generating) impacts of the gas station,
and consequently the station’s air quality impacts, had not been analyzed in
CEQA section 21168.9, the trial court, in the judgment, severed the gas station
from the rest of the Project and ordered FHK and Wal-Mart to suspend any gas
station activity until they had complied with CEQA regarding the station’s
traffic and air quality effects. The
trial court allowed the rest of the Project to proceed.
City excluded the gas station from the Project and adopted new resolutions
approving the Project and certifying its EIR in this context.
reviewing the CEQA issues on appeal, we determine, independently from the trial
court, whether City prejudicially abused its discretion either by failing to
comply with legal procedures or by making a decision unsupported by substantial
evidence. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d
553, 564 (Citizens of Goleta Valley);
Planning & Conservation League
v. Department of Water Resources (2000) 83 Cal.App.4th 892, 911-912.)
largely review the adequacy of an EIR.
“‘“[T]he sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible. . .”
[Citations.] Technical perfection
is not required; the courts have looked not for an exhaustive analysis but for
adequacy, completeness and a good-faith effort at full disclosure. [Citations.]’
[Citations.]” “A prejudicial
abuse of discretion occurs ‘“if the failure to include relevant
information precludes informed decisionmaking and informed public
participation, thereby thwarting the statutory goals of the EIR process.” [Citation.]’” (Berkeley Keep Jets Over the
Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1355 (Berkeley Jets).)
“Thus, [a] reviewing court ‘“does not pass upon the correctness of
the EIR’s environmental conclusions, but only upon its sufficiency as an
informative document.”’” (Citizens of Goleta Valley, supra, 52
Cal.3d at p. 564.) The substantial
evidence standard--i.e., enough relevant information and reasonable inferences
to support a conclusion, even if other conclusions might also be reached--is
applied in reviewing factually based findings, conclusions and determinations. (Bakersfield Citizens for Local
Control v. City of Bakersfield (2004) 124
Cal.App.4th 1184, 1198 (Bakersfield
Citizens); tit. 14, Cal. Code Regs., § 15384, subd. (a).)[i] (We will set forth the standard of review
regarding the planning and zoning consistency issues in our discussion of
1. The Trial Court Judgment Severing The Gas Station
Anderson Coalition contends the
trial court’s judgment violated CEQA by severing the gas station from the
Project, allowing the rest of the Project to proceed. The environmental impacts at issue here are
the gas station’s traffic and air quality impacts stemming from the number of
vehicle trips the station would generate.
We conclude the trial court did not err.
documents in the EIR process, the Project was described as a commercial project
consisting of a nearly 184,000 square-foot building for Wal-Mart, three other
commercial pad sites totaling 21,700 square feet, and a fourth pad for a
12-position gas station. (The 184,000
figure did vary in some of the documents, but only in trivial respects.) The sizes of the gas station and the
fourth pad were never specified. The
total square footage for the Project was described on several occasions as a
little over 205,000 square feet, a figure which did not encompass the gas
attempted to explain that the EIR had evaluated the gas station’s traffic and air
quality impacts (based on trip generation) pursuant to a standard
trip-generation manual. Under the
manual, the gas station was considered a shopping center “outparcel” (i.e., a
smaller, detached commercial parcel that is nevertheless part of a larger
shopping center complex). However, the
record showed that this manual’s example-based definition of “outparcel” did
not include gas stations, and that the “outparcel” definition was drafted prior
to the recent phenomenon of gas stations being developed as an integral part of
shopping centers themselves.
all of this, the trial court granted Anderson Coalition’s petition on the point
that the traffic and air quality impacts of the gas station had not been
analyzed in the EIR. The court reasoned
that, given the total square footage described for the Project, it was not
clear whether the gas station had been considered in the traffic and air
quality analyses in the EIR for the Project; and City’s claim that the gas station had
been analyzed as a shopping center “outparcel” was not supported by substantial
CEQA section 21168.9, the trial court fashioned the following remedy in its
judgment: the construction and operation
of all aspects of the Project could proceed, except for the gas station; all
activity regarding the gas station was suspended pending CEQA compliance
regarding its traffic and air quality effects.
dictates of subdivision (b) of section 21168.9, the trial court made the
following findings in the judgment: “(1)
the infirmities in the EIR are limited solely to the potential traffic and air quality
impacts associated with the proposed gas station; (2) the construction and
operation of the gas station are specific ‘project activities’ that are
severable from the remainder of the Project; (3) severance of the gas station
from the remainder of the project will not prejudice complete and full
compliance with CEQA, in that the only defects in the EIR . . . relate to the operation of
the proposed gas station to be located on the Project site, and the remainder
of the Project can be developed and operated without the gas station, and thus
without the potential traffic and air quality effects that might result from
gas station operation; and (4) the court has found the remainder of the Project
to be in full compliance with CEQA.” We
conclude the trial court acted properly.
21168.9 states as pertinent:
“(a) If a
court finds . . . that any determination, finding, or decision of a public
agency has been made without compliance with [CEQA], the court shall enter an
order that includes one or more of the following:
“(1) A mandate
that the determination, finding, or decision be voided by the public
agency, in whole or in part. [¶] .
. . [¶]
order pursuant to subdivision (a) shall include only those mandates which are
necessary to achieve compliance with [CEQA] and only those specific project
activities in noncompliance with [CEQA].
The order shall be made by the issuance of a peremptory writ of mandate
specifying what action by the public agency is necessary to comply with [CEQA]. However, the order shall be limited to that
portion of a determination, finding, or decision or the specific project
activity or activities found to be in noncompliance only if a court finds that
(1) the portion or specific project activity or activities are severable, (2)
severance will not prejudice complete and full compliance with [CEQA], and (3)
the court has not found the remainder of the project to be in noncompliance
Coalition argues that the trial court erred in its severance remedy by allowing
the Project to proceed after finding two significant defects in the EIR; contrary to CEQA’s basic purpose,
this approach improperly segregated project approval from environmental impact
evaluation. The two significant defects,
Anderson Coalition maintains, are the elusive and inadequate project
descriptions regarding the Project’s total size, and the inadequate traffic and
air quality analyses for the entire project.
Coalition’s argument fails in light of what we have said above. The record regarding the Project’s total size
and its traffic and air quality analyses shows that these two alleged defects
relate only to the EIR’s failure to consider the proposed gas station; these
defects do not concern the whole project.
The EIR’s descriptions of the Project’s total size show only that the gas
station may have been omitted from the Project’s environmental analysis. And the EIR’s analysis of the Project’s traffic
and air quality impacts was not inadequate regarding the entire project, but only regarding the gas station, which the trial
court found to have been omitted from the analysis. In this context, the trial court properly
could, and did, sever the gas station from the rest of the Project under
section 21168.9, subdivision (b).
Coalition claims that the severance remedy under section 21168.9 was originally
designed to address only relatively minor matters of noncompliance with CEQA,
not the more significant aspects involved here.
But as the court recognized in San
Bernardino Valley Audubon Society v. Metropolitan Water Dist. (2001) 89
Cal.App.4th 1097, “[t]he 1993 amendments to section 21168.9 expanded the trial
court’s authority and ‘expressly authorized the court to fashion a remedy that
permits some part of the project to go forward while an agency seeks to remedy
its CEQA violations. In other words, the
issuance of a writ need not always halt all work on a project.’” (89
Cal.App.4th at pp. 1104-1105, quoting Remy et al., Guide to the Cal.
Environmental Quality Act (10th ed. 1999) p. 647.)
decisions which have found the section 21168.9 severance remedy inapplicable
stand in contrast to the situation here and support our resolution: San
Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27
Cal.App.4th 713 (San Joaquin Raptor)
and Bakersfield Citizens, supra, 124 Cal.App.4th
1184. In San Joaquin Raptor, the court described the EIR as a “mass of flaws” from beginning
to end and “in all major respects.”
(27 Cal.App.4th at pp. 741-742,& fn. 13 [“the vast array of
inadequacies in the [EIR] precludes severance”].)
Bakersfield Citizens aptly
noted that “[n]o discrete or severable aspects of the projects are unaffected
by the omitted analyses; the defects relate to the shopping centers in their
entirety, not just to one specific retailer.”
(124 Cal.App.4th at p. 1221.)
Coalition also argues that “separation of the gas station from the remainder of
the Project improperly curtails environmental analysis and hinders a good faith
assessment of cumulative impacts.” Not so. The Project no longer includes the gas
station. And no free passes from
environmental review have been issued.
Should the gas station ever be proposed again, it will have to be
environmentally reviewed as to its own impacts and together with the Project as
to its cumulative impacts. (See San Joaquin Raptor, supra, 27
Cal.App.4th at pp. 729-730, 733 [lead agency cannot divide up a project
and overlook its cumulative impact by separately focusing on the divided
City and Wal-Mart claim the trial court erred in finding the EIR deficient regarding the gas
station’s traffic and air quality impacts.
We deem the claim forfeited because City and Wal-Mart have not
cross-appealed on this point. (See Weiss v. Brentwood Sav. & Loan Assn. (1970)
4 Cal.App.3d 738, 746.)
2. Urban Decay
Anderson Coalition next claims the EIR did not properly evaluate the
Project’s potential to cause urban decay.
Coalition raises two points.
Coalition claims City took the legally erroneous position that urban decay
impacts are economic impacts outside CEQA’s scope, and that since City’s
downtown was already partially blighted it was unnecessary to evaluate whether
urban decay is likely to result from the Project’s addition of over 200,000
square feet of new retail. In other
words, Anderson Coalition argues that City bypassed addressing the issue of
urban decay impact on legal grounds.
An EIR is to disclose and analyze the
direct and the reasonably foreseeable indirect environmental impacts of a proposed project if they are
§§ 15126.2, 15064, subd. (d)(3).)
Economic and social impacts of proposed projects, therefore, are
outside CEQA’s purview. When there is
evidence, however, that economic and social effects caused by a project, such
as a shopping center, could result in a reasonably foreseeable indirect
environmental impact, such as urban decay or deterioration, then the
CEQA lead agency is obligated to assess this indirect environmental impact. (Bakersfield
Citizens, supra, 124 Cal.App.4th at pp. 1205-1207; Friends of Davis v. City of Davis (2000)
83 Cal.App.4th 1004, 1019-1021 (Friends
of Davis); Citizens for Quality
Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, 445-446; Citizens Assn. for Sensible Development
of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151,
169-171.) An impact “which is
speculative or unlikely to occur is not reasonably foreseeable.” (Guidelines, § 15064, subd. (d)(3).)
In the EIR for the Project, City adhered to
these legal principles regarding the Central Business District (CBD or downtown). On the economic point, City substantively
considered the issue of whether economic and social changes wrought by the
Project could result in a significant indirect environmental impact of urban
decay or deterioration on the downtown, and concluded no. On the blight point, City
again considered the matter substantively, concluding there was no
evidence suggesting that City’s CBD would suffer from “additional physical blight or a significant deterioration of
character” as a result of the Project.
As for its
second point, Anderson Coalition claims the evidence is insufficient to sustain
City’s conclusion in the EIR that the impact of urban decay on the CBD is less than significant. We disagree.
In this context, we do not review the record, as the Coalition wishes us
to do, to determine whether it demonstrates a possibility of environmental
impact; we review it in the light most favorable to City’s conclusion to
determine whether substantial evidence supports the conclusion that the impact
of urban decay is less than significant.
(See Bakersfield Citizens,
supra, 124 Cal.App.4th at pp. 1207-1208; Friends of Davis, supra, 83 Cal.App.4th at p. 1021.) In the CEQA context, substantial evidence
“means 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).)
The EIR concluded that the Project would
not result in additional physical deterioration of City’s CBD (i.e., downtown), and therefore
this impact was less than significant.
Three reasons were given for this conclusion.
relied on an economic analysis which discussed the Project’s impacts on other
businesses, including the downtown area.
City’s downtown typically contains smaller retail stores that service
local residents. The Project, by
contrast, is designed to serve a regional market and compete against other
big-box retailers in Redding and Red Bluff. Although some competition would be expected
between the Project and existing businesses in the City, the Project is more
likely to compete directly with City’s existing outlying (satellite) shopping
areas rather than its Central Business District. Because of the City’s proximity to Redding
and Red Bluff’s big-box retailers, the City loses significant shopping and tax
dollars to these two cities from its own residents (general studies show an
approximate 25 percent “leakage”). The
Project could stem this leakage by keeping the City’s residents shopping in the
City; this could create more potential customers for goods and services within the
One study cited by Anderson Coalition shows that stores that do not
compete directly with Wal-Mart tend to show an increase in sales due to
increased local traffic.
prior to the Project application, City had created a redevelopment
district to address the issue of existing blight within the CBD.
The CBD and the proposed site for the Project (or at least one-half the site)
are in this district. Construction on
vacant land within the Redevelopment District, according to the EIR, results in significant increases
in property value and property taxes that City can use to
make improvements throughout the District.
By generating these tax increment moneys, the Project will
contribute funds to revitalize the CBD.
According to the EIR, City’s Redevelopment Agency projects “that $1 million in
net present value of future redevelopment property tax increment will be used
for public improvements in the Central Business District, and [$1.375 million]
will be used for commercial and industrial development business assistance. The business assistance programs are most
likely to be primarily utilized within the Central Business District. In addition, a net present value of [$4
million] is anticipated to be used to correct infrastructure deficiencies. Again, a significant amount of these funds
are likely to be allocated to infrastructure improvements within the Central
Business District area. In fact, the
first such infrastructure improvement project . . . is budgeted for
improvements . . . within the Central Business District.”
according to the EIR, the viability of the CBD area is more likely to be
affected by planning efforts and marketing strategies, infrastructure
improvement projects, appropriate building preservation, and incentives to
business owners to locate (and stay) in the Central Business District.
Coalition submitted a study of the Project’s likely potential to cause urban
decay in City’s CBD (the King Report), along with similar studies from other
communities (Shils Report, Stone [Mississippi] Report, Rea & Parker, Impact
of WalMart on Downtowns), and public testimony.
The King Report concluded “that the proposed Super Center would drive customers out of
[City’s] downtown area creating blight.”
(Emphasis deleted.) That report
went on to name the downtown businesses that would be severely impacted by the Super Center; these comprised two pharmacies,
one florist, one hardware store, two furniture stores and a craft store. The studies from other communities presented
a mixed bag. As the Stone Report noted,
for example, “[s]ome downtown businesses in cities where WalMarts have located
have benefited from the greater draw of customers. Others have been devastated by the
overwhelming new competition for their customers’ dollars.” The Shils Report has recognized that the key
survival strategy for local merchants is to specialize in unique products and
service. Local merchants need to create
niches, and draw from the increased traffic provided by the big-box retailers.
addressed these studies submitted by Anderson Coalition. City conceded that the two downtown
pharmacies identified in the King Report may be impacted by the Wal-Mart, but
noted that the other named downtown businesses, not directly competing with
Wal-Mart, may actually benefit from increased local retail traffic. City also pointed to the sales “leakage”
factor noted in these studies for communities without large retail projects,
and the “‘synergy’” that may be created between a new Wal-Mart and local
businesses that provide goods not offered by Wal-Mart. These studies did not persuade City that the economic effects of the Project will
foreseeably result in significant environmental
argument can be made that the King Report, focusing as it does on the City,
along with the studies from other communities and the public comments, present
substantial evidence that the Project could add to the blight in City’s CBD.
But a good argument can also be made that City has presented substantial
evidence that the Project will not do so.
Anderson Coalition argues that the “type and magnitude of evidence [it
presented on the issue of urban decay] parallels the evidence introduced in Bakersfield Citizens.”
But there is a big difference in the legal posture between the present
case and Bakersfield Citizens. The Bakersfield Citizens court concluded that an EIR was deficient as an informational
document because it failed to consider
the potential of a Wal-Mart Supercenter project to cause urban decay
notwithstanding a great deal of evidence of that potential. (Bakersfield
Citizens, supra, 124 Cal.App.4th at pp. 1193, 1208-1212.) Here, as we have seen, City’s EIR did
consider the issue of the Project’s impact on urban decay on the CBD, and concluded that the impact was
less than significant. As noted, we
review the record in the light most favorable to that conclusion. In doing so, we conclude that substantial
evidence supports it.
largely on the King Report, Anderson Coalition raises the additional issue that
the Project could cause new decay in satellite shopping areas outside the CBD (downtown) and claims the EIR never addressed this concern. The King Report focused on City’s downtown,
but also opined that the Project would seriously impact existing shopping
centers outside the CBD, creating blight; the report noted that City already has
one blighted mall and two that are marginal.
Anderson Coalition’s claim, the final EIR did
address this concern of outlying urban decay, stating: “The [draft EIR] does under Impact 4.2.2 note that
some economic impact may occur in other commercial areas of the community
[i.e., the shopping centers noted in the King Report outside the CBD].
However, while some vacancies may occur, in a growing community of Anderson, these vacancies may be filled by
other uses not directly in competition with Wal-Mart. Consequently, it cannot be stated with any
probability that any negative physical change may occur. Since economic effects are not
to be treated as significant effects, no mitigation is necessary. . .
. Notwithstanding [the King Report’s]
predictions of possible business closures, neither the commenter nor [the
King Report] has met the evidentiary burden necessary to require the City
to attempt to predict physical impacts
that hypothetically might follow from such closures. Nor has the commenter provided any
information suggesting that any such speculative physical impacts would rise to
the level of significant
environmental effects requiring analysis in an EIR.
Such potential closures would occur in an urbanized area that, compared
with currently undeveloped property, lacks any ecological values that might be
compromised or harmed by the temporary or permanent vacancy of urban
structures. Should businesses close and
not be replaced with new businesses, the purely environmental consequences
might be benign: reduced traffic into
the affected area. Should any closed
businesses be replaced with new ones, it is likely that there would be little,
if any, net environmental difference between the pre-closure and post-closure
condition. Old traffic will be replaced
by new traffic. . . . [¶] . . . It is
only when economic competition demonstrably leads to adverse environmental
effects that CEQA takes note . . . .”
did not find evidence of economic and social effects caused by the Project that
could result in a reasonably foreseeable impact of urban decay regarding
outlying shopping centers. (Bakersfield Citizens, supra, 124
Cal.App.4th at p. 1207; Friends of
Davis, supra, 83 Cal.App.4th at pp. 1019-1020.) City therefore did address this issue in the EIR.
And substantial evidence supports City’s conclusion that urban
decay in this context is speculative, and therefore not reasonably foreseeable;
consequently, City was not obligated to further analyze this claimed indirect
impact. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1207; Friends of Davis, supra, 83 Cal.App.4th at p. 1020;
Guidelines, § 15064, subd. (d)(3).) The
potential for urban decay in an older, denser urban area such as a central
business district is greater than that presented in a newer, outlying, more
isolated (satellite) shopping center.
Furthermore, City could reason that since it found the Project’s impact
of urban decay to the CBD to be less than significant on the basis of substantial
evidence, the lesser impact of urban decay to a diffuse, outlying shopping
center was no greater than speculative.
As a small, growing town with a population of around 9,500, City noted
that its potential for urban decay is less than that of a typical, declining
Anderson Coalition contends the EIR improperly sets forth speculative
traffic mitigation measures, and improperly segments environmental review of a
freeway interchange improvement from the Project. We disagree for the most part, but find we
must reverse the trial court’s denial of the Coalition’s petition regarding the
Project’s “fair-share” cumulative traffic mitigation fee regarding the
As for the
speculative traffic mitigation measures, the Coalition argues the EIR erroneously assumed the
uncertain (1) construction of Pleasant Hills Drive;
(2) realignment of Rhonda Road; (3) extension of Deschutes Road; and
(4) improvement of the I-5/Deschutes Road interchange (hereafter, I-5
requires that feasible mitigation measures actually be implemented as a
condition of development, and not merely be adopted and then neglected or
disregarded. (See Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252,
1260-1261 (Federation of Hillside).)
The EIR states that the Project cannot be
developed without the construction of Pleasant Hills Drive on the Project’s northern boundary
and the realignment of Rhonda Road on the Project’s eastern side. These two roads will intersect at a “T” just
west of State Highway 273. As mitigation
measures regarding this construction and realignment, the EIR specifies that the Project cannot
proceed until the right-of-way or access to the roadway for Pleasant Hills
Drive and Rhonda Road has been secured by City or to City’s satisfaction, and
the intersection of Rhonda Road and Pleasant Hills Drive has been set at least
350 feet west of State Highway 273.
These are not speculative mitigation measures regarding the construction
of Pleasant Hills Drive and the realignment of Rhonda Road; the Project cannot take place
extension of Deschutes Road and the improvement of the I-5
interchange are to meet cumulative traffic conditions for the Year 2025 as the
area develops. In light of the
assumptions that Pleasant Hills Drive will be constructed, Rhonda Road realigned, Deschutes Road extended, and the I-5 interchange
improved, the EIR concludes that the cumulative impacts of the Project on traffic
conditions will be less than significant.
traffic congestion will result from the cumulative impact of several projects,
cumulative traffic mitigation measures for a single project (that is one of the
several projects) may be deemed sufficient if those measures are based on
a reasonable plan of actual mitigation that the relevant agency commits itself
to implementing. (See Napa Citizens for Honest Government v. Napa
County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 363-364 (Napa Citizens); Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001)
87 Cal.App.4th 99, 141 (Save Our
Peninsula); Sacramento Old
City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1029 (Sacramento Old City Assn.); Federation of Hillside, supra, 83 Cal.App.4th
at pp. 1261-1262.) As we shall explain,
with respect to the cumulative-related Deschutes extension here, City has satisfied
this test regarding the Project.
addendum to a City staff report, City consultants noted that future commercial
development on the Westlake property just north of the Wal-Mart store is
likely, especially over a 20-year period of time, and therefore the Deschutes
Road extension (to serve that and other future development, together with the
Project) was included in the year 2025 conditions. In the final EIR, City noted: the extension of Deschutes Road (aka Factory
Outlets Drive) is identified in the Westlake Commercial subdivision map
adjacent to the north of the Project; City has identified the need for this
extension and has conducted two traffic studies dependent upon it; and City
will require the extension as a condition of further development in the
area. In the subsequent City staff report
(referred to ante), City additionally
noted that a subdivision agreement ensuring construction of this extension has
been included as condition 12 to the conditional use permit and condition 4 to
the tentative parcel map for the Westlake development. This satisfies the sufficiency test for cumulative
traffic mitigation measures related to a single project: the measures are based on a reasonable plan
of actual mitigation that the relevant agency has committed itself to
the I-5 interchange, also identified in the EIR as a cumulative-related (year 2025)
traffic impact. As a mitigation measure
for the Project’s contribution to this impact, City has imposed on the Project
a “fair share” mitigation fee to pay for improvements to the interchange. City has estimated the cost of
cumulative-based improvements for the I-5 interchange at approximately
$4.9 million, with approximately $3.9 million attributable to “Phase I” of the
improvement. Based on the Project’s
estimated trips, the mitigation measure specifies that the Project must pay
16.87 percent of the Phase I cost, or $611,214 (based on construction
costs as of July 1, 2003).
project’s contribution to a cumulative impact is deemed less than
significant if the project is required to implement or fund its “fair share” of
a mitigation measure designed to alleviate the cumulative impact. (Guidelines, § 15130, subd.
(a)(3).) Fee-based mitigation programs
for cumulative traffic impacts--based on fair share infrastructure
contributions by individual projects--have been found to be adequate mitigation
measures under CEQA. (Save Our Peninsula, supra, 87
Cal.App.4th at p. 140.) To be adequate,
these mitigation fees, in line with the principle discussed above, must be part
of a reasonable plan of actual mitigation that the relevant agency commits
itself to implementing. (Id. at pp. 140-141.)
is no serious dispute regarding the current cost estimates for the improvements
to the I-5 interchange or the Project’s fair-share percentage contribution to those
improvements. However, the Project’s
16.87 percent of the estimated Phase I cost of $3.9 million for the
improvements is $657,930, rather than the $611,214 fee specified in the
the mitigation measure specifies as pertinent that the Project will pay “the
impact fee . . . $611,214 to [City] to participate in the program to provide
improvements at the interchange at . . . Deschutes and Interstate 5.” The mitigation measure is vague regarding
“the program to provide [those] improvements”; in staff reports, City states it
is preparing an update to the Traffic Impact Fee Program to include the I-5
interchange improvements, and notes that “Condition 16 requires payment of the
sufficient under CEQA, this fair-share mitigation fee measure must (1)
specify an amount of $657,930 (which is currently based on July 2003
construction costs), and note the amount is for Phase I only; (2) specify
that the Project will also pay 16.87 percent of the remaining reasonable costs
of the improvements; and (3) make these fees part of a reasonable,
enforceable plan or program that is sufficiently tied to the actual mitigation
of the traffic impacts at issue (we realize City does not have total control
over the improvements to the I-5 interchange; Caltrans has an
important part to play as well).
(See Federation of Hillside, supra, 83 Cal.App.4th at pp. 1260-1261,
citing §§ 21081, 21081.6, subds. (a), (b); Guidelines, § 15091, subd. (b) [as
relevant here, CEQA requires a lead agency to find, based on substantial
evidence, that the mitigation measures are “‘required in, or incorporated into,
the project’”; the agency “‘shall [also] provide that measures to mitigate or
avoid significant effects on the environment are fully enforceable through
permit conditions, agreements, or other measures,’” and the agency must adopt a
monitoring program to ensure that the mitigation measures are implemented] (Federation of Hillside, supra, 83
Cal.App.4th at pp. 1260-1261).)
court denied the Coalition’s petition for writ of mandate on the issue of
whether the assumed improvements to the I-5 interchange (encompassing here the
Project’s fair-share contribution toward those improvements) were too
speculative to be deemed an adequate mitigation measure for this cumulative
impact. The trial court reasoned that
substantial evidence supported the EIR’s conclusion that the Project’s
cumulative impacts on traffic would be less than significant; therefore, the
court did not have to consider whether the Project’s fair-share mitigation fee
for the I-5 improvements was an appropriate or reasonable mitigation measure,
as there was no significant cumulative impact to mitigate.
court erred in this respect, and we shall reverse the judgment on this
point. As noted, the EIR concluded that the Project’s
cumulative impacts on traffic would be less than significant because it assumed, among other things, that
the I-5 interchange would be improved; the mitigation fee is the Project’s
fair-share contribution toward that improvement. Therefore, we have had to consider the
Coalition’s claim that the I-5 interchange improvements and the Project’s
fair-share mitigation fee toward those improvements were too speculative to be
considered adequate mitigation measures.
Coalition raises an additional contention.
The Coalition claims that City failed to analyze the environmental
impact of the I-5 interchange improvements as part of the Project, thereby
improperly segmenting environmental review of the Project in piecemeal fashion;
that, pursuant to Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d
376 (Laurel Heights), the I-5
interchange improvements should have been considered. We disagree.
In Laurel Heights, our state high court
concluded that the EIR for a university research facility did not assess the
project’s reasonably foreseeable impacts (resulting from the future expanded
use of the facility), thereby improperly segmenting the project’s environmental
review. At the time of the EIR process, the University knew it
would be significantly expanding the use of the research facility in the
immediate future, knew exactly how many square feet the expansion would be, and
had a clear idea of what the expanded facility would do. (Laurel
Heights, supra, 47 Cal.3d at pp. 393-398; see also Sacramento Old City Assn., supra, 229 Cal.App.3d at pp. 1023,
1025-1026.) The Laurel Heights court held that an EIR must analyze the environmental
effects of future action if that action is a reasonably foreseeable consequence
of the initial project and if it will likely change the scope or nature of the
initial project. (Laurel Heights, supra, 47 Cal.3d at p. 396.)
interchange improvements are not akin to the research facility expansion in Laurel Heights--the improvements are not as
definitive and specific, and they are tethered to a longer timeline. Furthermore, the interchange improvements are
based on the cumulative impact of several projects, and not just the project at
issue. The interchange improvements will
not likely change the scope or nature of the Project. The Project will already be in place, and
when the surrounding area is developed more, the interchange improvements will
service the area including the Project.
Of course, the interchange improvements will be subject to environmental
review at some point. (See Laurel Heights, supra, 47 Cal.3d at p.
396.) Consequently, we find that City
did not improperly segment environmental review of the I-5 interchange
improvements from the Project.
Anderson Coalition raises three
points on the subject of hydrology.
Coalition claims the EIR did not provide sufficient information to determine whether
a proposed stormwater detention basin was technically sound (the detention
basin is to ensure that postdevelopment stormwater runoff from the Project site
does not exceed predevelopment levels); the EIR omitted information regarding
rainfall rates, hydraulic routing, and other drainage data.
detention basin was analyzed in the “Preliminary Drainage Report” for the
Project, which was included in the EIR as an appendix. This drainage report was based on a more
general (nonproject) prior study, the “Anderson Drainage Study,” which was
referred to in the EIR but not included or incorporated therein. The Anderson Drainage Study contains all the
information that the Coalition maintains should have been included in the EIR.
Preliminary Drainage Report summarizes the pertinent technical hydraulic and
drainage information to determine the adequacy of the stormwater detention
basin for the Project. (As a
mitigation measure, the EIR requires the detention basin ensure that
postdevelopment storm runoff not exceed predevelopment storm runoff even in the
face of 10, 25, and 100-year storm events.)
Highly technical and specialized analyses and data for a project are to
be included in appendices to the EIR, as was done here with this
drainage report. (Guidelines,
§ 15147.) When an EIR relies on technical information
from an outside source, such as the Anderson Drainage Study here, the EIR should cite to that source (page
and section number, where possible) but need not include it. (Guidelines, § 15148.) The EIR could have referred more specifically
to the Anderson Drainage Study, but the EIR’s more casual references do not
invalidate the EIR.
Coalition notes that its expert and the Anderson-Cottonwood Irrigation District
(ACID) expressed concerns about water quality and quantity regarding the
Project’s drainage runoff into ACID’s main canal. ACID acknowledged that these concerns had
been resolved through a series of adopted mitigation measures that would
minimize the impacts. Also, pursuant to
ACID’s impetus, City is not to issue grading or building permits for the
Project until ACID approves the plans and verifies that the predevelopment
conditions are not exceeded. One of
ACID’s concerns had been the impact of the proposed gas station on water
quality, but the station is no longer part of the Project.
the Coalition asserts that City failed to respond to the Coalition’s expert’s
recommendation that the quality of stormwater runoff to the irrigation water
supply be monitored after the Project is developed. In approving the Project, however, City
adopted a mitigation monitoring program.
This program requires the monitoring of the water quality mitigation
measures that ACID deemed adequate to address its water quality concerns; those
concerns are focused on the irrigation water supply.
with General Plan and Zoning Code
Anderson Coalition claims the
Project is inconsistent with City’s general plan in two respects. These claims are based on the Planning and
Zoning Law (Gov. Code, § 65000 et seq.) rather than CEQA. (See Santa
Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689,
707 (Santa Teresa).)
review an agency’s decision for consistency with its own general plan, we naturally accord great deference to the authoring
agency’s determination. (Save Our Peninsula, supra, 87
Cal.App.4th at p. 142.) The agency has
broad discretion, especially regarding general plan policies, which reflect
competing interests. (Ibid.)
“A reviewing court’s role ‘is simply to decide whether the [agency]
officials considered the applicable policies and the extent to which the
proposed project conforms with those policies.’” (Ibid., quoting Sequoyah Hills
Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719-720 (Sequoyah Hills).) If the agency’s decision is not arbitrary,
capricious, unsupported, or procedurally unfair, it is upheld. (Santa
Teresa, supra, 114 Cal.App.4th at p. 707.)
Coalition claims the Project is inconsistent with Policy J of the land use element
of City’s general plan, which states:
“[City’s] Central Business District [CBD] should be the center of activity
in the community.” Coalition argues the
Project (1) is not in the CBD, but on the outskirts of town; (2) is designed to serve
40,000 people when City’s population is just over 9,000; and (3) will dilute
activity in the CBD.
In the EIR, City discussed Policy J and
concluded that the Project was consistent with it. City noted that the Project was a
regional-serving retail development that would not fit within the CBD, literally or figuratively. Drawing from what it had to say regarding
urban decay, City noted in the EIR that the CBD encompassed smaller retailers who
serve primarily the local community and who may benefit from an increase in
shopping traffic that now travels out of town.
Moreover, the CBD and much of the Project are in the City’s redevelopment
district, and the increased tax dollars from the Project will provide funding
to improve the CBD. These aspects, City
concluded, will enhance CBD activity and alleviate existing blight. We cannot say City’s consistency
determination regarding Policy J is arbitrary, capricious, unsupported or
Coalition’s second claim of general plan inconsistency concerns the following
nebulous statement buried in a narrative portion of the general plan: “The amount of land placed in the commercial
categories must be kept in scale with the needs of the community. Too much commercial can be as detrimental as
not enough.” The Coalition claims that
commercial acreage has significantly outpaced population growth.
that the Project is consistent with the policies of the land use element of the
general plan pertaining to commercial uses.
City based this finding on the following: the development of regional-serving retail
use is consistent with City’s long-term plans as evidenced by the existing land
use designation and zone district for the Project site and surrounding vacant
property; the Project is located in an area in which City has encouraged and
planned for commercial growth (South Anderson); and the Project will encourage
residential growth in its vicinity.
counters that these general rationalizations do not answer the major question
posed by the land use element of the general plan: “Does the [Project] cause too much commercial
property in [City?]” The problem with
this argument is that the language in the land use element Coalition relies
upon--that the amount of commercial land must be kept in scale with community
needs, and too much can be as detrimental as not enough--is itself a
generalized statement; in fact, the next sentence of that statement reads: “A precise amount of acres needed for
commercial, however, is difficult to calculate.”
then, City considered the applicable “policy” regarding the amount of
commercial land and did so in a reasoned, supported way. That’s as far as we can take our
inquiry. (See Sequoyah Hills, supra, 23 Cal.App.4th at p. 719 [in
considering general plan consistency, “[i]t is, emphatically, not the role of the courts to
micromanage these . . . decisions”].)
as our final consideration the Coalition’s claim that City unreasonably
interpreted its own zoning code. Similar
to an agency’s interpretation of its own general plan, “an agency’s view of the
meaning and scope of its own [zoning] ordinance is entitled to great weight
unless it is clearly erroneous or unauthorized.” (Friends
of Davis, supra, 83 Cal.App.4th at p. 1015.)
Here, City determined
that the Project is allowed in the Highway Commercial District (C-2) zone. City’s zoning code section 17.20.030,
subdivision K, governs that zone and states:
“Uses permitted subject to first obtaining a use permit . . . are as
follows: [¶] . . . [¶] K.
Commercial development of over twenty thousand square feet of gross floor area
(except hotels and motels).” City
required the Project to obtain a use permit here. We cannot say that City’s interpretation of
this zoning code section is clearly erroneous or unauthorized.
the judgment to the extent it denied the Coalition’s petition for writ of
mandate on the issue of whether the assumed improvements to the I-5 interchange
(encompassing here the Project’s fair-share contribution toward those
improvements) were too speculative to be deemed an adequate mitigation measure
for this cumulative impact, and we remand this matter to the trial court to
grant the petition in this respect. To be
sufficient under CEQA, this fair-share mitigation fee measure must (1) specify
an amount of $657,930 (which is currently based on July 2003 construction
costs), and note the amount is for Phase I of the improvements only;
(2) specify that the Project will also pay 16.87 percent of the remaining
reasonable costs of the improvements; and (3) make these fees part of a
reasonable, enforceable plan or program that is sufficiently tied to the actual
mitigation of the traffic impacts at issue.
In all other respects, the judgment is affirmed. The Coalition is awarded its costs on appeal.