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South Orange County Wastewater Authority v. City of Dana Point

June 30, 2011


Appeal from a judgment of the Superior Court of Orange County, David C. Velasquez, Judge. (Super. Ct. No. 30-2009-00283523)

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





We confront here the converse of our usual California Environmental Quality Act (CEQA) issue. Here, we are asked to order an environmental impact report, not to assess the impact of a proposed project on the present environment, but to assess the impact of the present environment upon a proposed project. The argument is that the environment needs to be cleaned up to make it suitable for the project, rather than vice versa.

Petitioner South Orange County Wastewater Authority (SOCWA) appeals from a judgment of the superior court denying its petition for a writ of mandate. SOCWA wanted the City of Dana Point (City) to prepare an environmental impact report (EIR) for a project to develop property next door to a sewage treatment plant SOCWA operates in Dana Point. We find that under CEQA, the project would not have the environmental impact necessary to require an EIR.

SOCWA also contends the land-use amendment paving the way for this development made the City's general plan internally inconsistent. The trial court did not address this precise issue, probably because of the unusual manner in which SOCWA presented it. We find no inconsistency. The trial court properly denied SOCWA's petition.


SOCWA operates a sewage treatment plant near the shoreline at Dana Point. In 2007, the City received an application from a developer, Makar Properties, LLC (Makar), to change the City's land use so that eventually Makar could develop a nine-acre site adjacent to SOCWA's plant. As relevant to this appeal, the three components of Makar's application were: (1) amending the City's general plan, to create a new, mixed-use land-use designation; (2) adding to the City's zoning code a new zone, R/C-22, allowing mixed residential and commercial development; and (3) rezoning the Makar site under the new zone.*fn1 The City's approval of these changes was only the first step, however. Because of the site's proximity to the shore, the California Coastal Commission would also have to sign off before anything could actually be constructed.

The City's planning commission (Commission) staff began the environmental review process required by CEQA whenever a public agency receives an application to approve a project.*fn2 It determined the land use changes Makar sought qualified as a project and then conducted an initial study to ascertain whether the project could have a significant adverse effect on the environment. There is no dispute that all of the necessary formalities were observed regarding notices, reviews, and public meetings. Having determined that any environmental effects caused by the project could be mitigated so as to render them insignificant, the Commission issued a mitigated negative declaration (MND) in February 2008. The MND was revised and reissued in October 2008, after the staff analyzed the effects of development more thoroughly.

The Commission held four public hearings on the proposed zoning changes in general and the Makar rezoning in particular, including one site visit open to the public.*fn3 The City ultimately amended the general plan, approved zoning changes (although not the ones Makar had initially requested), adopted the MND, and passed a resolution requesting Coastal Commission certification.

SOCWA objected throughout this process. Its initial objections, lodged by letter in March 2008, were based on noise and bad smells from plant operations and water runoff from the property.*fn4 The runoff issue was dealt with in the course of the review process. That left the noises and the bad smells. Although the smells would be, according to SOCWA, "intermittent" and "fleeting," it still professed to worry that prospective residents of the Makar site would be subjected to them.

While this concern on SOCWA's part for the comfort of residents of a project that was as yet but a gleam in the developer's eye appears to be quite public-spirited, in reality SOCWA had a not-so-very-carefully concealed agenda. Its recommended method of dealing with the bad smells - "intermittent" and "fleeting" though they were represented to be - was to cover the plant's aeration tanks, at Makar's expense. The price tag was initially $8 million, later reduced to $4.6 million.*fn5

At the Commission's public meetings regarding the land use and zoning changes, the effects of the rezoning were thoroughly discussed. For example, the Commission was not satisfied that the initial traffic studies for the Makar site reflected the realities of a summer weekend in Dana Point and required a do-over. Various limits on the maximum number of residential units per acre and the area to be devoted to commercial space were debated, as well as the odor issue. The Commission ultimately refused to recommend covering the tanks as a mitigation measure and recommended approval of the land-use changes and the MND without the more onerous odor-related measures sought by SOCWA.*fn6 The amendment to the general plan creating a new mixed use designation, the new zoning category (R/C-18), and the change in the zoning of the Makar site were all approved by the city council on June 8, 2009.*fn7 The specifics of the new R/C-18 zoning category were approved on July 27, 2009. The City Council also reviewed and adopted the MND on the same date.

SOCWA then petitioned the superior court for a writ of mandate. SOCWA asserted that a full-scale EIR was required, not just a negative declaration, in order to address the odor issue.*fn8 SOCWA also alleged the amendment to the general plan rendered the land-use elements of the general plan internally inconsistent.

The trial court denied the writ petition. The court pointed out that the CEQA project under review was not the construction of any residences or commercial buildings but rather the change in the City's land use. The City had evaluated the possible environmental effects of rezoning the Makar site at the levels permitted in the resolutions.*fn9 Although not required by CEQA to do so, it had taken into account the possible effects of the proximity of the SOCWA sewage plant, by requiring a buffer zone between the plant and future structures, visual screening, air conditioning, and notifications in escrow instructions. The court also found the City had properly exercised its discretion with respect to the adoption of the new zoning description and this new zone was not inconsistent with the City's general plan. The court observed that (1) the Coastal Commission had not yet approved the City's resolutions and ...

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