Super. Ct. No. 37-2009-00095947- CU-TT-CTL APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Affirmed in part, reversed in part, and remanded with directions.
The opinion of the court was delivered by: McINTYRE, J.
pub. order 7/8/11 (see end of opn.)
Following preparation of an initial study under the California Environmental Quality Act (Pub. Resources Code, §§ 21000-21178.1; undesignated statutory references are to this code), the City of Chula Vista (City) adopted a mitigated negative declaration (MND) with respect to a project to replace a store operated by Target Corporation (Target), a smog check facility, and a small market (the existing facilities) with a new larger Target store (the Project). Citizens for Responsible Equitable Environmental Development (Citizens) filed a petition for writ of mandate in the trial court against the City. Citizens appeals from the denial of the petition.
Citizens contends the trial court erred because there is substantial evidence of a fair argument that the Project may have a significant environmental impact on: hazards or hazardous materials; air quality for sensitive receptors; particulate matter and ozone; and greenhouse gas emissions and global climate change.
We conclude that the judgment denying Citizens's petition for a writ of mandate must be reversed to the extent it concluded that Citizens had not presented a fair argument that hazards and hazardous materials from the Project may create a potentially significant adverse environmental impact. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Project site is a 9.9-acre shopping center parcel at the northwestern corner of North Fourth Avenue and C Street in Chula Vista, California. The Project proposes to demolish the existing facilities and replace them with a new Target store, resulting in a net size increase of 9,844 square feet of commercial development. The Project would increase the site's green space from 3.17 percent to 10.6 percent, and provide drainage facility improvements.
In November 2008, Target applied for the Project's preliminary environmental review. In January 2009, the City circulated its initial study which determined that the Project may cause potentially significant impacts and required Target to comply with a series of mitigation measures set forth in the MND and an associated mitigation monitoring and reporting program (monitoring program). The City received no comments during the public review period. The MND concluded that the Project could have significant environmental impacts in the areas of air quality, geology and soils, hazards and hazardous material, hydrology and water quality, and traffic/transportation, but that those impacts could be mitigated. In June 2009, the City's planning commission recommended that the City Council approve the Project.
On July 13, 2009, the day before the City Council meeting, Citizens submitted a letter along with a CD-ROM containing thousands of pages of materials, asking that the council deny the Project. The following day, the City responded to each of the concerns raised by Citizens. After receiving no oral comments at the meeting, the City Council voted to approve the MND, monitoring program, and amend the zoning map. Citizens filed this action challenging the City's approval of the Project without preparing an environmental impact report (EIR).
The trial court issued a tentative ruling denying the petition for writ of mandate, and the parties submitted to the ruling. The court filed a judgment, and Citizens timely appealed.
An EIR must be prepared "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 (No Oil).) Under the fair argument standard, we determine whether there is substantial evidence in the record to support a fair argument that the project may have a significant effect on the environment. (Cal. Code Regs., tit. 14, § 15064, subd. (f)(1).) (References to the "Guidelines" refer to title 14 of the California Code of Regulations.) Whether a fair argument exists is a question of law that we review de novo, with a preference for resolving doubts in favor of environmental review. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.) Although our review is de novo and nondeferential, we must give the lead agency the benefit of the doubt on any legitimate, disputed issues of credibility. (Ibid.)
Under the fair argument standard, a project "may" have a significant effect whenever there is a "reasonable possibility" that a significant effect will occur. (No Oil, supra, 13 Cal.3d at pp. 83-84.) Substantial evidence, for purposes of the fair argument standard, includes "fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." (§ 21080, subd. (e)(1).) Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts unrelated to physical impacts on the environment. (§ 21080, subd. (e)(2).)
II. Hazards and Hazardous Materials
Citizens asserts the record contains substantial evidence of a fair argument that the Project may have a significant environmental impact due to contaminated soil, and the evidence does not show that the potential impact will be mitigated to a level of insignificance. We agree.
The MND notes that a gas station, formerly operating on a portion of the Project site, created environmental contamination "beneath the site" from leaking underground storage tanks and product lines. Since 1990, the groundwater at the site has been monitored. In 1996, "[c]onfirmatory soil sampling" was conducted. In 2008, a corrective action plan was created to reduce the remaining methyl tertiary butyl ether on the property. The Project's monitoring program indicates that the mitigation measures outlined in the corrective action plan must be complied with before building permits are issued. The MND anticipated that the required remediation would be completed before grading started, and if not completed, would continue during the grading activities.
The City asserts that the building permit stage is an acceptable deadline for completion of the remediation activities because it is groundwater that is contaminated and not soils; and existing groundwater contamination will not be affected ...