APPEAL from the Superior Court of Inyo County. Phillip J. Argento, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions. (Super.Ct.No. SICVPT0538164).
The opinion of the court was delivered by: Miller, J.
Inyo Citizens for Better Planning (ICBP) petitioned the trial court for a writ of mandate directing Inyo County (the County), the Inyo County Board of Supervisors (the Board), the Inyo County Planning Commission (the Planning Commission), and the Inyo County Planning Department (the Planning Department) to (1) set aside the 2001 County General Plan Amendment that alters the definition of "net acreage" (GPA), for failure to prepare an environmental impact report (EIR); (2) begin the EIR process for the GPA; (3) set aside approval of Tentative Parcel Maps (TPM) 357, 358, and 350, for failure to prepare an EIR and failure to meet the zoning codes; and (4) direct the County to cease processing TPMs 357, 358, and 350 until the court determines if the project complies with the General Plan, the California Environmental Quality Act (CEQA), and the zoning codes. ICBP also requested declaratory and injunctive relief. The trial court denied ICBP's (1) petitions for writ of mandate; (2) requests for declaratory relief; and (3) requests for injunctive relief. ICBP contends (1) substantial evidence supports a finding that the GPA could have a significant impact on the environment, therefore, the County should have prepared an EIR; (2) TPMs 357, 358, and 350 do not meet the minimum lot size requirements; and (3) EIRs should have been prepared for TPMs 357, 358, and 350. We reverse in part and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
The 2001 County General Plan defined "net acreage" as "the remainder of land left after land devoted to streets, roads, and utilities are deducted from the parcel." The Planning Department became concerned that the 2001 definition of net acreage was confusing and could result in some parcels being rendered too small for development because the phrase "`devoted to'" is unclear. Essentially, the concern was that property devoted to a utility easement should not have to be deducted from the net acreage calculation because the land was still useable, despite being encumbered by an easement. The Planning Department recommended that the Board alter the definition of net acreage.
The Planning Department adopted a negative declaration in support of its recommendation that the definition be altered. Many citizens of the County opposed the plan to alter the definition of net acreage. In particular, neighbors in an area known as the McLaren Ranch subdivision were opposed to altering the definition of net acreage because it would essentially permit three neighbors to move forward with their plans to subdivide their properties. Specifically, the McLaren Ranch neighbors were opposed to the subdivisions planned in TPMs 350, 357, and 358. The neighbors were also concerned that more people would begin subdividing their property under the new definition, and that environmental resources, such as water and wildlife, would be adversely impacted. The neighbors asserted that the negative declaration did not adequately anticipate the potential for greater residential growth under the altered definition of net acreage.
The County argued that the 2001 General Plan, and the EIR prepared for the 2001 General Plan, already anticipated the amount of growth that would be permitted under the altered definition of net acreage because the County always intended net acreage to be interpreted as including easement properties-the County was only altering the definition to clarify its longtime policy. In other words, the growth anticipated by the definition of net acreage in the GPA was no greater than the growth anticipated by the definition of net acreage in the 2001 General Plan, and therefore, a new EIR was not required.
On February 1, 2005, the Board adopted the negative declaration and approved the altered definition of net acreage in the GPA. The GPA definition of net acreage defined the term as "[t]he remainder of a parcel or piece of property after land dedicated or otherwise encumbered by an easement and/or right-of-way for a public street or road, including a County road, is deducted from the gross acreage or gross parcel size." The Board also approved TPMs 350, 357, and 358.
A. Legal Background-Three Step CEQA Process
We begin with a brief background of the CEQA process.
"Consistent with California's strong environmental policy, whenever the approval of a project is at issue, the statute and regulations `have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.' [Citations.]
"[1.] Threshold Determination of CEQA'S Applicability
"`The first tier is jurisdictional, requiring that an agency conduct a preliminary review in order to determine whether CEQA applies to a proposed activity. [Citations.]' [Citation.] CEQA applies if the activity is a `project' under the statutory definition, unless the project is exempt. [Citation.] `If the agency finds the project is exempt from CEQA under any of the stated exemptions, no further environmental review is necessary.' [Citation.] In such cases, the agency may file a notice of CEQA exemption, if it chooses to do so. [Citations.]
"If the project is not exempt-either because it does not fall within an exempt category or because an exception makes the exemption unavailable-then the agency must proceed to the second tier and conduct an initial study. [Citations.]
"The second tier of the process, the initial study, serves several purposes. One purpose is to inform the choice between a negative declaration and an [EIR]. [Citations.] Another of the initial study's purposes is to eliminate unnecessary [EIRs]. [Citation.]
"`CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment.' [Citations.] In certain situations where a straightforward negative declaration is not appropriate, the agency may permit the use of a mitigated negative declaration. [Citations.]
"[3.] Environmental Impact Report
"If the project does not qualify for a negative declaration, `the third step in the process is to prepare a full environmental impact report . . . .' [Citations.]
"The California Supreme Court has `repeatedly recognized that the EIR is the "heart of CEQA."' [Citation.] As the court observed more than three decades ago, `since the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.' [Citation.] Other cases have since confirmed the statutory preference for resolving doubts in favor of an EIR. [Citations.]" (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1372-1374.)
ICBP contends that substantial evidence supports a finding that the GPA could have a significant impact on the environment, and therefore, the County should have prepared an EIR. We agree.
The issue of whether an EIR must be prepared is resolved by applying the fair argument test. "We have [previously] described this test as follows: `Under [Public Resources Code] section 21151, a local agency . . . ordinarily must prepare an EIR on any project which "may have a significant effect on the environment." [Citations.] Conversely, an agency may adopt a negative declaration only if there is no substantial evidence that the project "may have a significant effect on the environment." [Citations.] [¶] A trial court therefore reviews an agency's decision to adopt a negative declaration using the "fair argument" test. Under this test, the agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment. [Citations.] "If such evidence is found, it cannot be overcome by substantial evidence to the contrary." [Citations.] [¶] "The lead agency's determination is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument." [Citation.] The court's "function is to determine whether substantial evidence supported the agency's conclusion as to whether the prescribed `fair argument' could be made." [Citation.]' [Citations.]" (San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 389, fn. omitted.) "If such evidence exists, [then] the court must set aside the agency's decision to adopt a negative declaration as an abuse of discretion in failing to proceed in a manner as required by law." (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 405, fn. omitted.)
"`On appeal, the appellate court's "task . . . is the same as that of the trial court: that is, to review the agency's actions to determine whether the agency complied with procedures required by law." [Citation.] The appellate court reviews the administrative record independently; the trial court's conclusions are not binding on it. [Citations.]'" (Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1139, fn. omitted.)
"The following does not qualify as substantial evidence under CEQA: `argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.' Substantial evidence, instead, consists of `fact, a reasonable assumption predicated upon fact, or expert opinion ...