(Orange County Super. Ct. No. 07CC1403; San Diego County Super. Ct. No. 37-2008-0008783-CU-WM- CTL) APPEAL from a judgment and order of the Superior Court of Orange County, David C. Velasquez, Judge, and the Superior Court of San Diego County, Michael Anello and Ronald S. Prager, Judges. Judgment affirmed; order reversed.
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
In this case we consider an environmental review process which commenced in 2002. During the course of that process the developers of a residential real estate project prepared an environmental impact report (EIR) which was certified by a county board of supervisors in 2003. The EIR was challenged in a prior writ proceeding and as a result of the challenge a writ was issued compelling the county and the developers to prepare a supplemental EIR (SEIR) which more thoroughly considered the impact of the project on water quality. The SEIR was circulated and certified in 2007.
The appellants contend that in this second proceeding under the California Environmental Quality Act (CEQA) (Pub. Resources Code,*fn1 § 21000 et. seq.) they had the right to challenge the developers' and the county's compliance with the prior writ compelling them to prepare and circulate the SEIR which considered the impact of the project on water quality. We reject this contention. An order discharging the earlier writ and determining the 2007 SEIR properly evaluated whether the project's impact on water quality was otherwise adequate was entered in the prior proceeding and became final during the pendency of the instant action.
We also reject appellants' contention that, following circulation of a draft version of the SEIR, the county should have recirculated the SEIR with a reference to the then-recent observation of larvae of an endangered toad species in a creek near the project and permit public comment on that fact. The county's decision to approve the SEIR without recirculation is supported by a number of circumstances disclosed in the record: the 2003 EIR assumed the toad species had been observed in the vicinity of the project but determined the project would have no significant impact on the toad because the toad was not observed on the site of the proposed development and the site was not a suitable habitat for the toad; public comment on the adequacy of this analysis was received and in challenging the adequacy of the 2003 EIR, appellants argued, among other matters, that observation of the toad in the vicinity of the project required further study of the impact of the project on the toad; and finally, although there was conflicting expert opinion, an expert retained by the developers concluded that the larvae sighting was not significant. Given the information about the toad provided in the 2003 EIR, the public comment on that information and later litigation, as well as the expert's appraisal of the significance of the larvae sighting, the county could reasonably determine the public had been given adequate opportunity to comment on the potential impact of the project on the toad and therefore the then-recent observations of the toad in the vicinity of the project site did not constitute new material information which required recirculation of either the 2003 EIR or the 2007 SEIR.
Because the county's compliance with the earlier writ and the adequacy the SEIR had been determined in the prior proceeding and because the county was not required to recirculate the 2003 EIR or the 2007 SEIR, we affirm the trial court's judgment insofar as it denied the appellants' petition challenging the validity of the 2007 SEIR.
However, we reverse a postjudgment order which compels payment of attorney fees to the developers from one of the appellants. Because the developers' attorney fees claim is based on the terms of an agreement between the developers and the appellant, it should not have been resolved by way of a motion for attorney fees in this CEQA proceeding and in any event the trial court erred in finding that the appellant breached the terms of its agreement with the developers.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2002, defendant and respondent County of Orange (the county),*fn2 in its capacity as lead agency under CEQA, gave notice of its intention to prepare an EIR for a project known as Silverado Canyon Ranch. Real parties in interest and respondents CCRC Farms, LLC, Anthony A. Marnell II, Marnell Corrao Associates, Inc, and Focus 2000, Inc. (collectively CCRC), are the developers of Silverado Canyon Ranch.
As proposed by CCRC, Silverado Canyon Ranch consists of 12 custom home sites, averaging 5.3 acres per lot, on 68.7 acres of privately held land within the boundaries of the Cleveland National Forest. The project site was formerly part of a family farm known as Holtz Ranch.
In 2003, the county circulated a draft EIR which included a biological study of the project. With respect to sensitive wildlife species, the drafters of the study found only one sensitive species, a Cooper's hawk (accipter cooperii), on the project site. However, the hawk was not nesting on the project site, but was only observed perched on a eucalyptus tree.
Importantly, the 2003 biological study included a list of "sensitive wildlife species that have been recorded in the site vicinity but have not been detected on the site." The arroyo toad, bufo microscaphus californicus, was among the species listed in the 2003 biological study as having been recorded in the vicinity of the project but not detected on the site of the project. The draft EIR concluded the probability of the arroyo toad occurring on the project site was: "very low; no suitable habitat, nearest population is 1.5 km away in Silverado Creek." Based on the finding of only one non-nesting sensitive bird species on the project site, the 2003 biological study concluded the project would not result in direct or indirect impacts to any sensitive species listed as threatened or endangered by either the United States Fish and Wildlife Service (USFWS) or the California Department of Fish and Game (CDFG).
In response to the draft 2003 EIR, members of the public commented negatively on the analysis in the biological study, and in particular its conclusion that the arroyo toad was not present on the project site and would not be indirectly impacted by the project. One commenter stated: "How can it be assumed that, for example Arroyo Toad, Quino Checkerspot (QCB) and Burrowing Owl do not occur on this site? Arroyo Toad is known to occur in Santiago Creek (CDFG 2002). All three of these species require a protocol survey to be conducted in order to show presence or absence. Failure to detect a given individual species during site visits of general or other focus does not necessitate their absence. . . . There is throughout the [draft EIR] an implicit assumption that because no sensitive species other than Cooper's Hawk was detected, there is no potential for their occurrence. This implies that every species that inhabits the project site in any form was detected during the site visits made by [the drafters of the biological study.] This is simply not a reasonable assumption."
Another commenter stated: "[T]he DEIR states that arroyo southwestern toads were not detected on the site. However the toad has been found in the vicinity of the site (35 juveniles observed in Silverado Creek; see Federal Register, Volume 65, Number 111; Proposed designation of critical habitat for the arroyo southwestern toad.) Therefore it is highly likely the project will have a significant indirect impact on this federally listed species."
A third commenter stated: "No arroyo toad (a listed threatened/endangered species documented to exist in the area) studies were done on-site, including upon the 46 acres that SHOULD have been listed as part of the project."
In response to these comments, the final EIR states: "At best the Silverado Canyon site (the site) provides marginally suitable habitat for the arroyo southwestern toad. The lack of potential for this species to breed or over-winter on the site has been confirmed by NRC's biologist Mr. Lee Jones. This conclusion appears [sic] to be shared by Mr. William Haas of Varanus Biological Services, Inc., whose letter was submitted by the appellants. The on site conditions are not typical of areas used [by] arroyo toads during the breeding season or other times of the year. There are not records for this species on the site nor is the site located within the boundaries of the designated 'Critical Habitat' for this species. In addition, the known locations for this species in this region are defined by substantially different environmental conditions than those on the site.
"As described FEIR Response to Comment A1-2, the site was re-evaluated for its potential to harbor the federally endangered arroyo southwestern toad, and it was concluded that no suitable habitat exists on-site either for breeding or for foraging."
The final EIR noted that the arroyo toad had been seen 1.5 miles downstream from the project but concluded that no USFWS protocol level survey was necessary: "A protocol-level search would require that a qualified biologist conduct at least six day and six night visits (same 24-hour period) to areas of suitable arroyo toad habitat between March 15 and June 1. Based on the existing conditions at the Silverado Ranch site and the fact that this species has not been located in similar habitats in this region, there is little justification for a detailed study to conclusively determine the absence of the species from the site."
Following circulation of the draft 2003 EIR, the receipt of comments and the preparation of responses to the comments, the county certified the final EIR for the project in August 2003.
2. Challenges to 2003 EIR
After the county certified the final EIR for the project in August 2003 and again after the county approved a tentative subdivision map for the project in October 2003, plaintiffs and appellants Rural Canyons Conservation Fund and Ray Chondos (collectively Rural Canyons) challenged the actions taken by the county in two petitions for writ of mandate filed in the Orange County Superior Court. After Rural Canyons's petitions were filed, its petitions were consolidated as Orange County case No. 03CC00422.
Rural Canyons challenged the adequacy of the 2003 EIR on a number of grounds, including but not limited to the failure of the EIR to identify as a significant impact the substantial grading required for the project, the absence of both quantative data with respect to existing water quality and quantative data with respect to the impact of the project on water quality, the failure to identify mitigation measures for the loss of coastal scrub, and the cumulative impact of the project.
Of significance here, Rural Canyons's 2003 petition also alleged: "Despite evidence in the record that the Arroyo Toad, a federally endangered species, has been found near the Project site, both upstream and downstream of the site, and despite the fact that directed surveys for this species were never conducted for the Project by the EIR preparers, the EIR concludes that the Project would have no significant impact on the Arroyo Toad. This conclusion is not supported by substantial evidence in the light of the whole record."
The trial court granted Rural Canyons's petition with respect to its claims that the EIR was inadequate in its failure to adopt appropriate mitigation measures for the loss of coastal sage scrub and in its failure to properly evaluate and mitigate the impact of the project on water quality. However, with respect to Rural Canyons's remaining claims, including its allegation the EIR did not properly evaluate the impact of the project on the endangered arroyo toad, the trial court found that "the Respondents' findings are supported by substantial evidence and Respondents have proceeded in the manner required by law."
In light of its determination of Rural Canyons's claims, on August 23, 2004, the trial court entered a judgment which in part granted Rural Canyons's claims for relief and in part denied them. In addition to the judgment, the court issued a writ that in part commanded the county to "[o]btain a study of the baseline water conditions and quality in the project area[,]" and to "[p]repare and circulate a supplemental EIR disclosing and evaluating the baseline water data collected and tested for, and the baseline water conditions and quality reviewed in, the study. . . ." The writ further ordered the county to provide public hearings on the actions that it took "to comply with this Court's judgment and writ."*fn3
3. Postjudgment Proceedings
None of the parties challenged the trial court's 2003 judgment granting in part and denying in part Rural Canyons's claims.
CCRC retained a civil and environmental engineering company to prepare a baseline water quality study for the county to use in preparing the SEIR. The county circulated a draft SEIR that incorporated the water quality study and addressed the project's impacts on water quality.
In April 2005, during the public comment period for the draft SEIR, Robert Haase, a zoologist with the Department of Defense, discovered arroyo toad larvae in Silverado Creek approximately 330 feet from the project site.*fn4 Haase did not find any metamorphic, sub-adult or adult individuals at that time or location.
In May 2005, Haase confirmed two more sightings of the arroyo toad in the general vicinity. Between June 17 and June 21, 2005, in surveys conducted for a different developer, biologist T'Shaka A. Toure reported sighting 25 to 35 arroyo toads between the stages of late tadpole to early metamorphosis in Silverado Creek, 1.6 miles downstream from the project.
Rural Canyons and others notified the county of the arroyo toad sightings and asked the county to circulate a revised SEIR to address the impacts of the project on the arroyo toad and its habitat.
CCRC retained biologist Peter Bloom to survey the project site and the portion of Silverado Creek that is adjacent to the site, for the presence of arroyo toads. Bloom looked for arroyo toads in that area on five days and nights between June 29 and July 27, 2005. In addition, on six days and nights in the following year--between March 24, 2006 and July 16, 2006--Bloom conducted a second survey of the area. Bloom reported that he found no evidence of arroyo toads.
In support of their request for recirculation, project opponents presented a letter from a USFWS biologist, who was concerned that, in light of the Haase and Toure observations and notwithstanding the Bloom surveys, there was a high likelihood the arroyo toad was present on or near the project site. The biologist reasoned as follows: "Although arroyo toads were not observed at Silverado Creek in 2006, they can remain buried in the soil for extended periods of time, emerging to breed or forage only when conditions are appropriate, so based on the observation of breeding arroyo toads at this location in 2005, it is likely that toads are still present in suitable habitat along Silverado Creek. This population of arroyo toads appears to breed intermittently and may be particularly difficult to observe on a year to year basis, as evidenced by the fact that, prior to 2005, the last documented observation of arroyo toads in the immediate area was in 1985."*fn5
The principal biologist retained by CCRC, David Levine, strongly disagreed with the USFWS biologist as to the significance of Haase's observation of toad larvae near the project site and the probability arroyo toads were present on the project site. At the hearing at which the SEIR was certified, Levine stated: "The information that is out there that wasn't in the EIR and it went through our offices is that there are larvae found in 2005, period. That is the only fact that we have to deal with. Where those larvae came from, what the adults were, whether or not those turned into -- metamorphed into adults, nobody knows. [¶] . . . [¶] [Y]ou kind of have to use a probability analysis. If we've only got a handful of larvae, no adult sightings, the probability of [the toads reaching the project site] gets to be very far removed. You know, many orders of magnitude for that actually to occur that there be an adult toad estivating on the Holtz Ranch. That would be a very unlikely event in my opinion[.]"
Levine also recognized that the arroyo toads have a 1,000-foot dispersal zone and the project was within that zone. However, because Haase only reported seeing a relatively small number of toad larvae,*fn6 Levine did not believe it was proper to measure their dispersal zone from the point of the Haase sighting.
The county certified the final SEIR on October 2, 2007, without recirculating a draft which noted the Haase observation of toads in the vicinity of the project. The SEIR noted Haase's recent arroyo toad larvae sightings, but rejected the request of commenters that in light of the sightings the SEIR be recirculated: "The issue of alleged project impacts to the Arroyo Toad and the Toads presence near the Project site (both upstream and downstream) was alleged in the Rural Canyons Conservation Fund v. County of Orange, et al, Orange County Superior Court Case No. 03CC00422. The Court rejected this claim and found the County had supported its previous determination with substantial evidence. This portion of the EIR remains valid. The commenter provides no new evidence about the Arroyo Toad or habitat that was not already considered or known when the FEIR was certified."
4. Discharge of Writ and Challenge to 2007 SEIR
On November 5, 2007, Rural Canyons filed a new action in Orange County Superior Court, case No. 37-2008-00087783, challenging the validity of the SEIR. Silverado Modjeska Recreation and Parks District (the District) joined Rural Canyons as a petitioner in the 2007 action, which was assigned to the same judge who was still presiding over the 2003 action.
Shortly after Rural Canyons and the District initiated their 2007 action, CCRC moved in the 2003 action to discharge the trial court's earlier writ in the 2003 action. The parties submitted a substantial administrative record concerning whether the water quality study complied with the writ and CEQA, and extensively briefed those issues on the motion to discharge the writ. Acting in the 2003 action, the trial court granted the motion to discharge the writ. The trial court's order granting the discharge states: "[T]he County has complied with the commands of the Writ, thereby justifying the Writ being discharged. The Court further finds that in so complying with the commands of the Writ, the County has complied with CEQA* with respect to the issues alleged in the instant action."*fn7 Rural Canyons did not appeal from the order discharging the writ in the 2003 action.
b. Challenge to 2007 SEIR
On the same day it heard CCRC's motion to discharge the writ in the 2003 action, the trial court heard Rural Canyons's and the District's motion to transfer their 2007 action to a neutral county pursuant to Code of Civil Procedure section 394. The trial court granted the motion and transferred the 2007 action to the San Diego County Superior Court.
The 2007 petition alleged two substantive causes of action: the first cause of action alleged the SEIR did not comply with the writ issued in the 2003 action; the second cause of action alleged the discovery of the arroyo toad constituted significant new information and that the county's failure to circulate a revised SEIR to address the discovery of the arroyo toad violated CEQA. After the 2007 action was transferred to San Diego County Superior Court, the trial court heard CCRC's demurrer to the petition. The trial court sustained CCRC's demurrer to the first cause of action without leave to amend and overruled the demurrer to the second cause of action.
In sustaining CCRC's demurrer to the first cause of action, the trial court noted that the order discharging the writ in the 2003 action included a finding the county had "made a proper return to [the] peremptory writ by amending the EIR, obtaining a study of the baseline water conditions, and preparing and circulating the SEIR regarding the baseline water conditions and quality." The trial court further noted that the judge in the 2003 action "found the County had complied with the commands of the writ issued in the 2003 action, dismissed the ...