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First v. City of Tracy

August 27, 2009; as modified September 18, 2009

TRACY FIRST, PLAINTIFF AND APPELLANT,
v.
CITY OF TRACY, DEFENDANT AND RESPONDENT;
WINCO FOODS, REAL PARTY IN INTEREST AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. Affirmed. (Super. Ct. No. CV032505).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PUBLICATION

The City of Tracy (City) prepared an environmental impact report (EIR) with respect to a proposed specific plan amendment and a conditional use permit to build a 95,900-square-foot WinCo Foods store. After considering the EIR and public comments, the city council certified the EIR and approved the project. Tracy First filed a petition for writ of mandate in the trial court against the City challenging the certification of the EIR and approval of the project, with WinCo Foods as the real party in interest. The trial court denied the petition, and Tracy First appeals.

On appeal, Tracy First contends that the City abused its discretion by certifying the EIR. The EIR was considered by the planning commission, which recommended certification of the EIR. However, the city council directed staff to amend the EIR by adding additional information. The city council then certified the EIR, as amended, without sending it back for the planning commission to consider the amendment. Tracy First argues that the City failed to proceed in the manner required by law when the city council certified the amended EIR without obtaining the planning commission‟s recommendation concerning the amendment. We conclude that the relevant statutes and rules did not require the city council to obtain renewed planning commission review before certifying the amended EIR. We also conclude that Tracy First‟s remaining contentions are without merit and therefore affirm.

In a protective cross-appeal, WinCo Foods contends that the trial court (1) abused its discretion by denying WinCo Foods‟ motion for discovery concerning Tracy First‟s standing and (2) abused its discretion by ruling that Tracy First has standing. WinCo Foods seeks reversal of the order denying its discovery motion if we reverse the order denying the petition. Because we affirm the order denying Tracy First‟s petition, we do not consider the contentions made in WinCo Foods‟ protective cross-appeal. (See Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 280, fn. 19 [no need to consider arguments in protective cross-appeal when affirming].)*fn1

FACTUAL BACKGROUND

A. Project Application and Initial Study

In 2003, the owners of property near Interstate 205 in the City of Tracy submitted an application to change the designation on the property from industrial to commercial in the City‟s general plan and in the specific plan for the Interstate 205 corridor. The area around the property had earlier been designated for commercial uses as the area grew into a prominent regional retail center, drawing customers from a wide area. At the time of the application, no specific use was proposed for the property. City staff prepared an initial study, recommending approval of the application, and referred it to the planning commission. City staff concluded that it was unnecessary to prepare an EIR because one had been prepared in 1990 when the land was zoned industrial and the change to commercial was consistent with that EIR.

B. 2003 Planning Commission Review

The City‟s planning commission considered the application in a public hearing. Counsel for Tracy First objected that further environmental review was required for the rezoning because it was a project under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The planning commission voted to recommend to the city council that the general plan and specific plan be amended to rezone the property commercial.

Before the planning commission recommendation could be taken up by the city council, an application for a WinCo Foods grocery store was submitted as to the southern part of the property under consideration for rezoning. The City decided to prepare an EIR for the rezoning.

C. Environmental Impact Report

In October 2005, the City circulated a draft EIR for public comment. It covered three components: (1) a general plan amendment, (2) a specific plan amendment, and (3) construction of the WinCo Foods store. For the purposes of the draft EIR, the property was broken into two parcels: the southern parcel, where the WinCo Foods store would be built; and the northern parcel, which had no specific building planned. The draft EIR was intended to inform city officials and the public concerning the environmental effect of rezoning the southern and northern parcels for commercial use and of building a WinCo Foods store on the southern parcel. It stated: "At this time, no specific development is proposed for the Northern Parcel. However, this EIR evaluates the impacts of a hypothetical 141,130 square-foot commercial development, which would be allowed under the proposed General Plan and Specific Plan designations."

To some extent, the draft EIR considered impacts of the hypothetical northern parcel development. For example, the draft EIR considered the hypothetical northern parcel development with respect to fire department services, traffic impacts, water service, geological risks, and wildlife. The draft EIR, however, did not cover aspects of the northern parcel that could not be known without a specific project in mind, such as aesthetics.

The draft EIR identified two types of unavoidable significant impacts on the environment: air quality and traffic. And the EIR discussed four alternatives to the project. The alternatives included: (1) no project, (2) an industrial project, with no commercial component, (3) an increase in the size of the WinCo Foods store, and (4) a decrease in the size of the parking lot for the WinCo Foods store.

Tracy First did not comment on the draft EIR. However, some of the people who submitted comments identified themselves as supporters of Tracy First.

After the close of the public comment period, the City prepared a final EIR to submit to the planning commission.

D. 2006 Planning Commission and City Council Review

In May 2006, the planning commission held a public hearing on the EIR. At the hearing, city staff recommended certification of the EIR and approval of the general and specific plan amendments and a conditional use permit for the construction of the WinCo Foods store.

After receiving comments from the public, the planning commission approved the conditional use permit. It recommended that the city council certify the EIR and amend the general and specific plans.

On behalf of Tracy First, Taylor Vo sent a letter to the City appealing the planning commission‟s approval of the conditional use permit. Vo also purported to appeal the certification of the EIR, but the planning commission did not certify the EIR. Instead, it only recommended that the city council certify the EIR.

In June 2006, the city council held a hearing to consider the appeal and the planning commission‟s recommendations. Counsel for Tracy First presented several objections to the EIR and the project, including (1) store closures and urban decay, (2) air quality impacts, and (3) energy impacts. Concerning Tracy First‟s identity, counsel said that Tracy First was composed of business owners and merchants, primarily from the downtown Tracy area. Counsel for Tracy First also submitted 152 pages of written comments and exhibits concerning the EIR and project approval.

After the close of the public comment part of the hearing, the city council decided to obtain further information on the environmental impacts before taking action. The council directed city staff to provide further information and voted to continue consideration of the EIR and the project to a later date. Subsequently, the city council approved $55,022 to prepare an amendment to the EIR.

E. Amendment to Environmental Impact Report

In December 2006, the City issued an amendment to the EIR. The amendment covered (1) land use and economics (urban decay), (2) traffic impacts, (3) air quality impacts, and (4) energy conservation. The amendment stated: "Although this new information did not result in new significant impacts, the analyses leading to these conclusions were not included in the [draft EIR. The] City has decided to recirculate the [draft EIR]."

The amendment noted a change in the circumstances under consideration. A new general plan had been adopted and the area of the project had been rezoned from industrial to commercial. Therefore, only the approval of the specific plan amendment, the certification of the EIR, and the conditional use permit to build the WinCo Foods store on the southern parcel were still under consideration. The amendment also noted that an application to build an office project on the northern parcel had been submitted, but the application was not yet complete.

The City circulated the EIR, as amended, for public comment. Tracy First did not submit a comment during the comment period.

F. 2007 City Council Review

In April 2007, the city council held a hearing on the issue of whether to certify the EIR, as amended, and approve the specific plan amendment and the conditional use permit. After a city staff report, the council heard public comments, including comments from counsel for Tracy First. During the public hearing, Tracy First also hand-delivered a 15-page letter, plus 116 pages of exhibits concerning the amended EIR. After the close of the public comment part of the hearing and further discussion among the council members, the city council voted to certify the amended EIR and approve the specific plan amendment and conditional use permit.*fn2

G. Trial Court Proceedings

Tracy First filed a petition for writ of mandate in the trial court. The petition sought an order directing the City to set aside its certification of the EIR and approval of the project application. Tracy First also filed two requests for judicial notice.

WinCo Foods filed a motion for leave to conduct discovery concerning the involvement of Save Mart Supermarkets in Tracy First and Tracy First‟s standing to sue under CEQA to challenge the City‟s certification of the EIR and approval of the project application. The trial court denied the motion for leave to conduct discovery.

After a hearing on the petition for writ of mandate, the trial court denied both the petition and the requests for judicial notice. The court awarded to the City and WinCo Foods the costs of suit and costs associated with preparation of the administrative record. Tracy First appeals, contending that the certification of the EIR and approval of the project application must be set aside. It does not contend that the denial of the requests for judicial notice was error.

STANDARD OF REVIEW

""Section 21168.5 [of the Public Resources Code] provides that a court‟s inquiry in an action to set aside an agency‟s decision under CEQA "shall extend only to whether there was a prejudicial abuse of discretion. 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." As a result of this standard, "The court does not pass upon the correctness of the EIR‟s environmental conclusions, but only upon its sufficiency as an informative document." [Citation.]‟ [Citation.] "We 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.]

""An appellate court‟s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court‟s: The appellate court reviews the agency‟s action, not the trial court‟s decision; in that sense appellate judicial review under CEQA is de novo.‟ [Citation.]" (In re Bay-Delta et al. (2008) 43 Cal.4th 1143, 1161-1162.) DISCUSSION

I. Planning Commission Review

Tracy First contends that the city council‟s certification of the EIR and approval of the project application must be set aside because the city council did not obtain the planning commission‟s review of the amended EIR before the council certified it and approved the project application. Tracy First asserts that the approval of the project application without sending it back to the planning commission with the amended EIR was an abuse of discretion because the city council did not proceed in the manner required by law. We conclude that the CEQA guidelines and the city‟s municipal ordinances did not require the planning commission to review the EIR, as amended, and make a new recommendation to the city council before the city council could act.

A. CEQA Guidelines and Tracy Municipal Ordinances

"Where an advisory body such as a planning commission is required to make a recommendation on a project to the decisionmaking body, the advisory body shall also review and consider the EIR or negative declaration in draft or final ...


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