APPEAL from a judgment of the Superior Court of El Dorado County, Daniel B. Proud, Judge. Reversed with directions. (Super. Ct. No. PC20070021).
The opinion of the court was delivered by: Morrison, J.
CERTIFIED FOR PARTIAL PUBLICATION
California Native Plant Society and others (Society) challenged El Dorado County's approval of the Congregate Care Project, alleging violations of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and El Dorado County's General Plan (General Plan), claiming the project will harm two rare plants. The trial court rejected all of the Society's claims and it timely appealed.
In an effort to preserve rare plants and help developers plan projects, El Dorado County (the County) adopted by ordinance a program by which developers in a defined geographic area would pay a rare plant impact fee, and the money collected, along with money from other sources, would be used to create professionally managed rare plant habitats. The program has never itself been reviewed under CEQA, although it is described in the General Plan, which passed CEQA muster with a finding of overriding considerations.
The central issue is whether payment of the impact fee adequately mitigates the environmental impacts-as to plants-of all projects within the relevant area. More exactly, by paying the fee, does a developer establish entitlement to a mitigated negative declaration (MND)-as to plants-instead of having to prepare an environmental impact report (EIR)?
The answer is no. As the County's own General Plan EIR, prepared after adoption of the fee program, provides, and as County staff advised the Board of Supervisors (Board) before it approved this project, the impact fee allows approval of projects within the relevant environmentally fragile area, but does not eliminate the need to evaluate and address the impacts on plants of a particular project within that area.
The trial court misunderstood the relevance of the fee program and this skewed its evaluation of the evidence submitted against the project. The Society did not have to show that the fee program was ineffective, it had to show the evidence supported a fair argument that the project would have a significant effect on the environment. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927-929 (Pocket Protectors).) Contrary to the trial court's view, there is substantial evidence in the record to raise a fair argument that the project may have significant environmental impacts on one or more endangered plant species, in particular, Ceanothus roderickii (Pine Hill Ceanothus or Pine Hill Buckbrush) and Calystegia stebbinsii (Stebbins' Morning-Glory or Cutleaf Morning-Glory or Stebbins' False Bindweed). The fact that the witnesses did not frame their opinions as attacks on the fee program does not mean their views were speculative or unfounded.
A comprehensive preservation program funded by impact fees may be a sound or even essential strategy for mitigating some development impacts, and the California Supreme Court, this court, and other appellate courts have held that such fees may adequately mitigate environmental impacts. (1 Kostka & Zischke, Practice Under CEQA (Cont.Ed.Bar 2d ed. 2008) Mitigation Measures, § 14.19, pp. 703-704.) But CEQA is focused on "the effects of projects on the actual environment upon which the proposal will operate." (Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354.) Thus, to be considered adequate, a fee program at some point must be reviewed under CEQA, either as a tiered review eliminating the need to replicate the review for individual projects, or on a project-level, as-applied basis. This is reflected not only by basic CEQA principles, but by the County's General Plan EIR and by the views of the County's staff in this particular case. Because the fees set by the ordinance have never passed a CEQA evaluation, payment of the fee does not presumptively establish full mitigation for a discretionary project. Further, as we explain, the fee schedule is outdated as a matter of law, as it has never been reviewed as required.
Accordingly, in the published portion of this opinion, we shall conclude the MND should not have been certified and that an EIR is required for this project. In the unpublished portion, we shall briefly address some subsidiary issues for guidance.*fn1
The project has not been stayed pending this appeal. That does not moot the CEQA issues and does not prevent adoption of additional mitigation measures. (See Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888 [project completion does not moot CEQA challenge if some effective relief could be granted].) On the other hand, completion of the project may have verified the adequacy of some mitigation measures challenged by the Society, such as whether certain propagation techniques would work. We reverse with directions to the trial court to issue a writ of mandate requiring the County to withdraw the MND and prepare an EIR to assess the appropriate rare plant mitigation measures for this project.
FACTUAL AND PROCEDURAL BACKGROUND
Background information is necessary to make sense of the facts and procedures directly pertaining to project approval.
Ecological Preserve Fee Ordinance
In 1998, as a result of long-standing concerns about dangers to native plants, the County adopted the Ecological Preserve Fee Program as an ordinance codified at chapter 17.71 of the County Code.
This was an outgrowth of the work done by the County Rare Plant Technical Advisory Committee (Plant TAC), which apparently is now known as the "Plant and Wildlife" TAC. As summarized by County staff:
"In 1992, following [a Board] hearing and an informational workshop, the [Board] requested the formation of the [Plant TAC], consisting of members from the development community, various agencies (California Department of Fish and Game [DFG], Bureau of Land Management [BLM], U.S. Fish and Wildlife Service [FWS]), El Dorado County planning staff, California Native Plant Society, Center for Sierra Nevada Conservation (formerly Friends Aware of Wildlife Needs), American River Conservancy, and others. This committee was established to identify feasible preserve sites, funding mechanisms, and management strategies for these preserves." (Pine Hill Preserve-A Brief History & Issue Paper, available at www.co.el-dorado.ca.us/bos/wwwroot/Attachments/eadf4302-3c24-473a-bee4-9cc2f2673a84.doc, visited August 14, 2008.)
The Plant TAC designed a system of preserves, but lacked the ability to create a funding mechanism. The DFG obtained a grant from the FWS to study the issue and a financial consultant prepared a feasibility study in 1997.
The ordinance defines "rare plants" or "Pine Hill endemics," including C. roderickii (hereafter sometimes "ceanothus") and C. stebbinsii (hereafter sometimes "morning glory"). (El Dorado County Code, § 17.71.0101(L).)
"There are hereby established an Ecological Preserve Mitigation requirement comprised of on-site and off-site mitigation standards and an ecological preserve fee in lieu of such mitigation. The amounts of the fee shall be established periodically by resolution of the board of supervisors and shall be based on the formula set forth in this Ordinance." (Id., § 17.71.200.)
The ordinance defines three areas, 0, 1 and 2, and states:
"Payment of a fee in lieu of Ecological Preserve Mitigation is encouraged in Mitigation Areas 1 and 2. Developments in Mitigation Areas 1 and 2 shall mitigate impacts by exercising one of the following two options:
"A. Pay the appropriate fee in lieu of Ecological Preserve Mitigation for the direct or indirect impacts caused by development on rare plants and rare plant habitat; or
"B. Participate in the Rare Plant Off-Site Mitigation Program." (Id., § 17.71.220.)
The fee shall be "reviewed on an annual basis and adjusted as necessary to insure that the anticipated fees are no more and no less than required for the purpose for which they are collected." (Id., § 17.71.240.) In 1998, the County set the area 1 fee at "$885 per dwelling unit equivalent[.]" Despite the requirement for annual review of its efficacy, the County has never reviewed the original fee levels.
A draft report explaining the ordinance states in part that the fee "would be charged 'in lieu' of on-site mitigation that would otherwise be required by the regulating agencies[,]" and in part states that if the program is not adopted, "developers in the Rare Soils Area will need to conduct individual biological studies and devise a mitigation plan if rare plants are found on their property. Payment of the ['fee'] will significantly reduce the risk and uncertainty of the current case-by-case individual mitigation."
Adoption of the ordinance was deemed to be categorically exempt from CEQA. (See Pub. Resources Code, § 21084, subd. (a); Cal. Code Regs., tit. 14, §§ 15300, 15313.) Thus, no environmental review was conducted.
Pine Hill Ecological Preserve
With funds from the fee ordinance and other sources, the County acquired the Pine Hill Preserve, consisting of five units called Cameron Park, Pine Hill, Penny Lane, Martel Creek and Salmon Falls, managed together as one preserve.
"In 2001, a cooperative management agreement for the Pine Hill Preserve in El Dorado County was signed by three Federal agencies ([BLM], [FWS], and U.S. Bureau of Reclamation), two State agencies ([DFG] and California Department of Forestry and Fire Protection), El Dorado County, El Dorado Irrigation District [EID], and the American River Conservancy. With this agreement, the signatories agreed to pool their resources to conserve the rare plant species and ecosystems that they inhabit. The primary goal of the Pine Hill Preserve is the preservation in perpetuity of the rare plant species and communities of the western El Dorado County gabbro formation. By separate agreement, El Dorado County and [BLM] have created funding to employ an interim preserve manager."
Graciela Hinshaw is the current preserve manager, and the project is adjacent to the Cameron Park Unit.
In 2002, FWS adopted the "Recovery Plan for Gabbro Soil Plants of the Central Sierra Nevada Foothills." It discusses six "gabbro plants," including the ceanothus and morning glory endemic to the Pine Hill formation, which is just over 25,000 acres in size, although "isolated occurrences" of the latter plant can be found in some nearby counties. The Pine Hill formation is "distinctly higher" than surrounding land, a feature which contributes to its unique ecosystem. In addition to a number of endemic plants, about "10 percent of the native plant species known from California are represented within this tiny fraction of the State." Both plants at issue are adapted to periodic fire, that is, their seeds generally germinate after some type of heat treatment; human fire-suppression policies threaten the species because excessive time between fires harms their ability to reproduce.
The Recovery Plan states in part: "Habitat fragmentation and edge effects significantly affect gabbro plants. Habitat fragments are more susceptible to being burned in their entirety, with shorter than natural intervals between fires, relative to larger tracts of habitat. . . . An occurrence of a rare species of Ceanothus in San Diego County was extirpated in this manner. Habitat fragments may be too small to protect from being burned all at once. Additionally, habitat fragments may be too small to support viable populations of animals serving as pollinators or seed dispersal agents. . . . [¶] Edge effects, which occur at the interfaces of any two or more habitat types, typically increase with habitat fragmentation and are more pronounced for natural communities bordered by human disturbances. Edge effects reduce the integrity of a site as habitat fragments get smaller."
The Recovery Plan states that research on propagation techniques is needed for both plants.
In response to a comment the Recovery Plan states:
"We want to clarify that recovery plans are not regulations or laws. They are advisory documents that are approved by [FWS]. The approval of a recovery plan does not mean that the recovery plan becomes law or is legally binding. An approved recovery plan outlines our best recommendations for tasks that we believe to be required to recover and/or protect listed species."
In another response, the Recovery Plan states that the financial burden on the County is minimized because various state and federal entities contribute toward "acquisition of the plant preserves." As indicated earlier, the 2001 management agreement also pools funds to "to conserve the rare plant species and ecosystems," and a separate agreement pays for a professional preserve manager.
In 2004, the County adopted a new General Plan, which in part discusses "Pine Hill Rare Plants," including both plants at issue. It explains that Pine Hill Rare Plants "are restricted chiefly to gabbro-derived soils and are collectively called gabbro soil plants. Gabbro soils have unusual properties derived from the underlying gabbro rock: they are generally red, mildly acidic, and rich in iron and magnesium, and often contain other heavy metals such as chromium." These plants "have been extirpated from a significant portion of their historic range. The remaining habitat is highly fragmented, with many areas providing only marginally suitable habitat."
The General Plan EIR discusses the creation of the preserve program, including the Pine Hill Preserve, and actions leading to the adoption of the ecological preserve fee, which "created a method by which the County raises funds to acquire land from willing sellers to be included in the ecological preserves." As of 2002, "slightly more than 2,900 acres of rare plant habitat had been protected" within the Pine Hill Preserve. The General Plan acknowledges that the Recovery Plan goal was to acquire 5,000-plus acres.
In response to comments, the EIR describes the three areas created by the fee program, which "is projected to generate funds equivalent to approximately 25 percent of the total acquisition cost of the preserve system. State, federal and other local agencies are assumed to participate in acquisitions funding and, have done so. The fee program also generates funds which are deposited into a trust account, the interest from which is used to pay for operations, maintenance and management costs. Finally, the preserve fee program is required to be revisited periodically to ensure that facts which support the fee calculation remain current." (Italics added.)
As stated, the record reflects that the County has not reviewed the fee program since its adoption in 1998.
Elsewhere the General Plan EIR adopts Policy 22.214.171.124, by which "The County shall continue to provide for the permanent protection of the eight sensitive plant species known as the Pine Hill endemics and their habitat through the establishment and management of ecological preserves, consistent with County Code Chapter 17.71 [the ecological preserve fee program] and the USFWS's [Recovery Plan]." Despite this Policy, the EIR explains that significant unavoidable impacts remain, but no further feasible mitigation measures exist.
"All development projects involving discretionary review shall be designed to avoid disturbance or fragmentation of important habitats to the extent reasonably feasible. Where avoidance is not possible, the development shall be required to fully mitigate the effects of important habitat loss and fragmentation. Mitigation shall be defined in the Integrated Natural Resources Management Plan (INRMP)(see Policy 126.96.36.199 and Implementation Measure CO-M).
"The County Agricultural Commission, Plant [TAC], representatives of the agricultural community, academia, and other stakeholders shall be involved and consulted in defining the important habitats of the County and in the creation and implementation of the INRMP."
The parties agree that the INRMP does not yet exist. Therefore, although Policy 188.8.131.52 states discretionary projects must "fully mitigate . . . important habitat loss and fragmentation[,]" it defines mitigation with reference to a nonexistent standard.
Continuing a lawsuit that had invalidated a prior General Plan in 1999, the Society and others challenged the new General Plan EIR, but the disputes were settled while the matter was on appeal. (See El Dorado Co. Taxpayers et al. v. County of El Dorado (C051164, April 24, 2006) [app. dism. per settlement].)
The County describes the project in part as follows:
"The Project area is part of the former 383-acre Smith & Gabbert property used to create the Cameron Park Pine Hill Preserve unit. Specifically, in 1998, the County amended the General Plan to designate 315 acres of the 383-acre property to the Pine Hill Preserve. [Citation.] The remaining 68 acres . . . was designated for urban development . . . . [¶]
"The Project includes a 35 room full-time Alzheimer's care unit, 140 units of congregate care, 64 duet cottages, and an 8,000 square foot clubhouse on approximately 20-acres. . . . The development includes Palmer Drive, the Marshall Medical Center, Eskaton senior assisted living facility, medical office buildings, and a local retail shopping center."
On July 17, 2006, the County circulated a mitigated negative declaration for the project.
In part this included an environmental checklist prepared by the County's project planner, Lisa Burke, who apparently was staffed from a private company known as Pacific Municipal, referred to in the record as PMC. Her review showed that a number of "special status species" were found on the property, including but not limited to the morning glory, an "Endangered" species and the ceanothus, a "California Rare" species. Planned mitigation was to establish a .385 acre "on-site Calystegia [i.e., morning glory] Preserve north of the project site, adjacent to the Pine Hill Preserve[;]" transplant "the four" morning glories actually on the site to that preserve, and collect and treat seeds and prepare the preserve to foster that plant species. The developer also had to pay the ecological preserve fee as a mitigation measure, assessed for this project at $135,000.
Planning Commission Hearing
On August 24, 2006, the County's Planning Commission accepted testimony. Staff explained that the land was currently zoned for 10-acre residential use and the project would divide it into three parcels: One would remain at that zoning level, one would be rezoned to commercial planned development, for "the Alzheimer's unit, congregate care units, and the clubhouse" and the last would be rezoned to "limited multifamily residential planned development," "and will contain the duet units." Duets are like duplexes in that they have two living units, but they are on separate lots.
Graciela Hinshaw testified that she was the manager of the Pine Hill Preserve, which was formed by several government agencies and nonprofits and is dedicated to protecting "the rare gabbro soil plants of El Dorado County." Later testimony established that she was "directly" employed by BLM but her salary was partly paid for by the County. The project's 68-acre parcel is adjacent to the preserve and is "the largest remaining contiguous habitat parcel in the area." Fragmentation of habitat was of concern. She emphasized the importance of the ceanothus and noted that there was no mitigation proposed for the loss of its habitat. Later she suggested that the parcel be considered for addition to the Pine Hill Preserve, which needed adjacent lands to effectively preserve plants.
Pete Trenham, a local "Senior Wildlife Biologist" with FWS, testified there were five plants listed under the federal Endangered Species Act [ESA] in the area, and FWS is one of the agencies that formed the Pine Hill Preserve. Two endangered plants had been identified in the report prepared by Sycamore Environmental Consulting (SEC), the morning glory, which occurs mostly on the Pine Hill formation and the ceanothus, which occurs only thereon.
As for the former, Trenham did not believe "transplanting four plants to a one-third acre preserve area" was adequate mitigation. He explained that his agency had only just heard about the project and asked that it be "involved in any determination in the future work, looking for mitigation for this specific project and for other projects on the parcel and, . . . in the areas around the preserve." When asked directly by a commissioner what mitigation would be adequate, Trenham replied as follows:
"Having just heard about this project in the last couple of days, we haven't had a sufficient amount of time to review the project, and we would need time to review the impacts. And . . . I can't comment on specific . . . recommendations on mitigation at this time. But we would really like to . . . contribute to that discussion."
John Little, the principal scientist from SEC, testified that Trenham's comments did not take into account the plant impact fee. Thus, the adequacy of the impact fee was placed on the record at that time.
Roberta Gerson, Chief of the local FWS Endangered Species Program, explained that the reason FWS had not been informed earlier is that there was no "federal nexus" requiring notification to it. She too was concerned that impacts on and only on the morning glory were mitigated, apparently because that plant was also "State listed," giving DFG authority over it:
"Therefore, none of the other endangered plants, federally endangered plants, on the property have been discussed. Meaning, for example, the Roderick Ceanothus, which covers the entire area, is basically having no mitigation for destroying those plants."
Gerson also testified, "we have not had successful transplants done of these plants. There is no guarantee transplanting them will work" and the small size of the proposed preserve made it difficult to be effective.
"And . . . it's only for those four [morning glory] plants, which doesn't even begin to address the rest of the endangered species on the parcel.
"So, bottom line, the service is very concerned. We do believe this is inadequate.
"We see a real problem where obviously, as Steve [Hust] said, we wonder also why [DFG] never got in touch with us. Yeah, we wonder why we never heard about this project until yesterday, although it's because there's no federal nexus, but that still doesn't stop the obligation of the [ESA] and the whole reason all of us got together and became cooperative partners in trying to achieve enough land acquisition so we can have that land base to start managing and start recovering the species so we can move on with, you know, development and everything in El Dorado County."
Thus, Gerson, Chief of the local Endangered Species Program Branch of the FWS, the federal agency involved in creation of the Pine Hill Preserve, with notice that the impact fee was relied on as mitigation, testified that the mitigation plan was not adequate to actually save these plants. Both she and Trenham also testified that their agency had not been notified of the project in time to present more thorough comments. Hust, of the County staff, agreed with this claim of lack of notice and added that even when staff wants DFG to consult with FWS, if there is no federal nexus, it does not happen. On appeal the County claims these agencies were notified, citing a February 13, 2006 letter which "cc's" them, but the letter is vague about the project and references other documents which are not attached to the copy in the administrative record; in any event, that does not show the letter was received.
After the hearing, an email "string" on August 30 to 31 shows that the environmental consultant for the project was alerted to the issue of adequacy of payment of fees, that is, whether in the circumstances, payment of fees necessarily mitigated the project to below threshold levels of significance. For example, in an email dated August 30, 2006, Dan Gifford of DFG noted that the "take" permit application did not address the ceanothus: "Although there is no fed nexus for this project, the County thru various policies and cooperative agreements is committed to conserving Pine Hill sensitive plants. The [MND] should be revised to contain mitigation for all ...