APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. (Super. Ct. No. MCV037258).
The opinion of the court was delivered by: Ardaiz, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant contends that the City of Madera (City) violated the California Environmental Quality Act (CEQA) and the City's municipal code by approving a commercial retail shopping center project without preparing a subsequent or supplemental environmental impact report (EIR) for the project after the site plan for the 795,000 square feet of retail space in the project was changed so that the largest retail space grew from 138,000 square feet to 198,484 square feet. As we shall explain, we agree with the superior court that neither CEQA nor the municipal code was violated.
Appellant's CEQA argument relies heavily on this court's opinion in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens). In the published portion of our decision, we clarify that Bakersfield Citizens did not hold and should not be construed as holding that the inclusion in a project of a retail store called a "supercenter" necessarily triggers a requirement that the project's EIR include an examination of possible urban decay effects.
In November of 2006 the City certified an EIR for a project described in the EIR as a "proposed retail center" with "approximately 795,000 square feet of gross floor area located on a 100-acre site" located just northeast of the intersection of state Highway 99 and Avenue 17. A "conceptual site plan" in the EIR showed approximately 30 retail spaces, the largest of which (labeled "Major 7") was 125,000 square feet. Because the 100-acre site was located north of and just outside of the city limits, it first had to be annexed to the City. The annexation was approved on February 13, 2007. On or about March 29, 2007, the developer submitted what it describes as a "refined" site plan to the City's Community Development Director (CDD) for administrative review. The largest retail space in the refined site plan was considerably larger than the one that had appeared in the "conceptual" site plan in the EIR. The largest retail space in the refined site plan was labeled "Major A" and described as 198,484 square feet "not including garden center." The garden center adjoining the Major A space on the refined site plan was an additional 10,900 square feet. The refined site plan identified the proposed Major A tenant as a "Super Target" store. The total retail square footage of the entire project (approximately 795,000) remained unchanged.
On May 4, 2007, the CDD approved the developer's refined site plan. In June of 2007 the City prepared an "Addendum" to the EIR which concluded that "there are no substantial changes proposed in the Project which would require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects." At a July 10, 2007 meeting of the City Planning Commission (Commission), the Commission voted unanimously to recommend that the City approve a development agreement with the developer for the project. The City's "staff report" to the Commission in preparation for the Commission's July 10 meeting had recommended adoption of the resolution recommending that the City adopt the proposed development agreement. That staff report also stated in part: "An environmental impact report (EIR) was certified for the overall project in December of 2006. An addendum to the EIR has been prepared to address refinements to the conceptual site plan which was referenced in the initial EIR. The addendum must be considered in conjunction with the proposed development agreement." The staff's report also stated: "The EIR Addendum appropriately addresses clarifications made to the project since the original EIR was certified. No new impacts have been identified. Staff recommends approval of the development agreement." At the July 10 meeting, the City's CDD explained the purpose of the addendum and explained that the commissioners must consider the addendum in conjunction with any decision they make:
"You see the previous plan had on the west side had one large [store] about 125,000 square feet. Kind of in the middle of the site plan had another larger format of about 138,000.
"But the inside plan has one very large store just under 200,000 square feet. And the other tenant sizes are reduced somewhat to make up for it. That's the principal change that we covered in the addendum. Some of the tenants squished here and expanded there, but none were particularly noteworthy.
"The EIR addendum covers the fact that there's no increase in the total building area. So previously we had a max of 795,000 square feet. But the max identified here is actually a little bit less, 791,000 square feet in change. And finally to the addendum, EIR identifies no changes to the significance of any impacts or the presents [sic] of any new impact.
"The responsibility of the decision-makers is to review and consider the addendum in conjunction with your decision. So that is essentially what you will be doing with any action that you take.
"And with that, I would be happy to answer any questions."
The meeting chairperson asked "Any questions?" None were asked. Several persons at the meeting spoke in favor of adopting the development agreement. No one spoke against it, or against the adequacy of the environmental review in the Addendum.
At an August 1, 2007 City Council meeting, the City adopted a resolution approving the Addendum to the previously certified EIR, and adopted an ordinance approving and adopting the development agreement between the City and the developer. The vote was four in favor, one against. At this meeting the City's CDD again gave an explanation of the Addendum similar to the one he had given at the July 10 Commission meeting. He explained that "[t]he principal change is that there is one big building at 198,000 square feet" that the "addendum concludes that there are no changes to the significance of any impacts or the presence of any new impact generated by that refinement and square footages," and that "there's no net increase in total building area, no changes in use." At the conclusion of the CDD's presentation, the meeting chairman, Mayor Mindt, asked if there were any questions for the CDD. None were asked. No one spoke against the resolution approving the Addendum. The only person who spoke against the ordinance approving and adopting the development agreement was Council Member Sam Armentrout, who explained "[m]y concerns are the amount of infrastructure costs that the City is willing to pay back to get this project here and the fact that the developer has the right to assign or sell the agreement in the future." Although Council Member Armentrout's dissatisfaction was with the development agreement and not with the Addendum, the Addendum resolution and the development agreement ordinance were voted on as a package, and thus Armentrout's no vote was cast on both of those agenda items.
The present action was filed on August 1, 2007, the same day the City Council approved the Addendum to the EIR and the ordinance approving and adopting the development agreement, but before the City Council held its meeting. The action alleged that the City's revision of the site plan to expand the 125,000 square foot space (Major 7) in the original site plan to a 198,484 square foot space (Major A) in the revised site plan without first preparing a subsequent or supplemental EIR violated CEQA and various provisions of the Madera Municipal Code. The superior court disagreed, and denied appellant Melom's petition for a writ of mandate directing the City to set aside its May 4, 2007 approval of the revised site plan.
Appellant contends that (1) the City violated CEQA, and particularly Public Resources Code section 21166,*fn2 when it approved the revised site plan without first preparing a subsequent or supplemental EIR, and (2) the City's approval of the revised site plan violated section 10-3.4.0106 of the Madera Municipal Code. Appellant's contentions appear to be based in large part on appellant's reading of this court's decision in Bakersfield Citizens, supra, 124 Cal.App.4th 1184, and her reading of the later case of American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062 (American Canyon). Appellant appears to view these decisions as requiring that whenever a governmental entity approves a project which includes a so-called supercenter (such as the "Super Target" which is part of the present project), approval of such a project requires an EIR addressing "potential urban decay effects" which might result from the supercenter. As we shall explain, we do not so read these two cases. We will affirm the judgment.
"In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry `shall extend only to whether there was a prejudicial abuse of discretion.' (Pub. Resources Code, §21168.5.) Such an abuse 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.' (§21168.5; see Western States Petroleum Assn. v. Superior Court [(1995)] 9 Cal.4th [559,] 568; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 .)
"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. [Citations.] We therefore resolve the substantive CEQA issues ... by independently determining whether the administrative record demonstrates any legal error by the [Agency] and whether it contains substantial evidence to support the [Agency's] ...