APPEAL from a judgment of the Superior Court of Sacramento County, LLoyd G. Connelly, Judge. (Super. Ct. No. 34-2007-00002871-CU-WM-GDS)
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PUBLICATION
This is a case where CEQA worked.*fn1 The City of Rocklin (the City) in 2007 approved a residential development project for an undeveloped area of the City known as Clover Valley. The approval culminated more than 10 years of planning and environmental review for the site's development. Since 1981, zoning authorized nearly 1,000 homes for the site. The site's owners applied to develop a project for that size in 1991, and environmental review began in earnest in 1995. As a result of environmental concerns analyzed since then, the approved project is roughly half the size it could have been. The amount of open space has increased by a factor of five. The project owners have already paid millions of dollars to the City to construct needed infrastructure. The approved project has been redesigned to protect numerous environmental resources on the site, particularly prehistoric Native American artifacts.
Plaintiffs Clover Valley Foundation, the Sierra Club, and the Town of Loomis, however, claim the City has still failed to conduct legally sufficient environmental review. They filed separate petitions for writs of mandate challenging the City's project approval, claiming the City failed to comply with CEQA and the state Planning and Zoning Law (Gov. Code, § 65000 et seq.).
The trial court denied their petitions, and plaintiffs now appeal those judgments. Plaintiffs argue the City abused its discretion in violation of CEQA by certifying an environmental impact report (EIR) they assert failed on many fronts. It allegedly failed to: describe the sites' cultural resources, consider a sewer pipeline's growth-inducing effects, consider all oak trees that will be removed, protect a listed species, analyze view and traffic impacts, and document an adequate water supply. Plaintiffs also claim the project, by including road construction within a 50-foot buffer zone, is not consistent with the City's general plan.
We disagree with each of plaintiffs' claims and affirm the trial court's judgments. The EIR complies with all of CEQA's procedural demands, and its factual conclusions are supported by substantial evidence. All of the impacts raised by plaintiffs were sufficiently described and adequately mitigated in the EIR. In addition, the City did not abuse its discretion in concluding the project was consistent with the City's general plan.
The project at issue, commonly called the Clover Valley Project, is a residential subdivision proposed for the northern end of Clover Valley, a small, narrow valley located in the City's northeast corner. Presently, this part of Clover Valley is undeveloped. Clover Valley Creek runs through the site from north to south. The area includes grasslands, wooded hillsides, oak woodlands, historic rock walls, and prehistoric cultural and archaeological resources.
As approved by the City, the 622-acre project will create 558 homes, a 5.3-acre neighborhood park, a 5.0-acre commercial site, a 1.0-acre site for a future fire station, and related infrastructure and streets. One of those streets would be a new road named the Valley View Parkway, a road that had earlier been specified in the City's general plan. The project would preserve 366 acres of open space.
Planning for developing Clover Valley began years ago. Since at least 1981, the site has been zoned for residential development of as many as 974 homes. In 1991, the owners of the site applied to develop 974 homes with only 69.8 acres of open space, and to annex the site into the City. In 1995, the City circulated a draft EIR for this project. The City prepared a final EIR in 1996, and certified it in 1997. This EIR was not challenged.
Based upon this EIR, the site was annexed to the City, and the City approved general plan and zoning amendments along with a development agreement to allow the proposed project to proceed. The development agreement, approved in late 1997 and effective January 9, 1998, required the owners to pay $1.5 million to the City for a public recreation facility, which the owners did. The development agreement's initial term was 10 years, but the term would automatically be extended for the period of time any litigation challenging any later project approval was pending.
In 2000, the current owners, real parties in interest, submitted an application to begin subdividing the project site into 47 large lots, and the ultimate subdivision of those lots into as many as 933 lots. The City in 2002 circulated a draft EIR for this proposal, which tiered from the earlier annexation EIR certified in 1997.
During the review of this proposal, real parties in interest repeatedly agreed to reduce the size of the project. In October 2003, they reduced the number of homes to 753. In April 2004, they reduced the number to 710 homes. In August 2004, the reduced the number to 689 homes. They ultimately reduced the number to the 558 ultimately approved by the City. As part of this revision, real parties in interest agreed to increase the amount of open space from 69.9 acres to 366 acres, and to reduce Valley View Parkway from a four-lane road to two lanes.
As part of the revised project, the City and real parties in interest negotiated an amendment to the 1997 development agreement. This amendment extended the agreement's term by 10 years, limited the number of homes that could be built to 558, required real parties in interest to pay the City $1 million towards construction of a new fire station, and committed real parties to transfer certain cultural sites on the land to the United Auburn Indian Community for preservation.
The revised project necessitated general plan and zoning amendments to account for the reduced acreage and number of housing units, the increased acreage of open space, and the other project revisions. Rather than use the 2002 Draft EIR for the revised and reduced project, City staff determined to prepare a new draft EIR to analyze the revised project. This draft EIR, referred to as the Recirculated Draft EIR (RDEIR), was publicly circulated during the first quarter of 2006.
The RDEIR generated 196 comment letters and 74 sets of oral comments. It took the city 15 months, until June 2007, to prepare responses to all of the comments and to release the Final EIR (FEIR).
The June 2007 FEIR included 49 pages of "Master Responses" addressing the primary comments that had been raised. The FEIR also included revisions to the RDEIR text and a Mitigation Monitoring Plan.
Members of the public submitted additional comments to the FEIR. As a result, although not required by CEQA, City staff prepared "Responses to Additional Public Comments" (Additional Responses), dated August 20, 2007. The Additional Responses stated they were intended to be incorporated into the FEIR and were to be read together with the Master Responses.
Prior to the release of the Additional Responses, the City's Planning Commission on July 30 and 31, 2007, held a public hearing and unanimously recommended that the City Council certify the EIR and approve the project.
On August 27 and 28, 2007, the City Council held a public hearing on the project. At the close of the hearing, the City Council certified the EIR (which included the RDEIR, the FEIR and its Master Responses, and the Additional Responses), adopted CEQA findings, and unanimously approved the project, the necessary general plan and zoning code amendments and subdivision maps, and the negotiated amendment to the development agreement.
Plaintiffs Clover Valley Foundation and the Sierra Club (collectively the Foundation), and plaintiff Town of Loomis (Loomis) filed separate petitions for writs of mandate challenging the City's approval of the EIR and the project. The parties agreed to consolidate the two petitions and to change venue to Sacramento County Superior Court.
On February 6, 2009, the trial court issued a ruling denying the consolidated petitions. On February 27, 2009, the court entered judgment in favor of the City and the real parties in interest.
The Foundation and Loomis appeal from the trial court's judgment.
The Foundation alleges the City violated CEQA by failing to:
1. include in the EIR identifying and descriptive information of cultural resources on the project site;
2. consider a proposed sewer pipeline's growth-inducing impacts;
3. evaluate and mitigate for all of the oak trees that will be removed for the project; and
4. adopt legally enforceable mitigation measures to protect the black rail, a bird species listed as threatened under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.).
The Foundation also claims the City violated the state Planning and Zoning Law (Gov. Code, § 65000 et seq.) by approving a development project that allegedly was inconsistent with the City's general plan; specifically the general plan's policy prohibiting development within 50 feet of stream banks.
Loomis alleges the City violated CEQA by failing to:
1. adequately analyze the project's impacts on views from Loomis or to discuss possible mitigation measures to avoid or reduce those visual impacts;
2. adequately analyze the project's impacts to transportation and circulation; and
3. identify a legally adequate long-term water supply for the project.
We address each contention below, providing more detailed factual information relevant to each argument.
Before addressing the parties' arguments, we review the standard of review we are to apply in a CEQA appeal. Our Supreme Court recently explained the standard of review as follows:
"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.' (Pub. Resources Code, § 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 (Laurel Heights I).)
"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 [City] and whether it contains substantial evidence to support the [City's] factual determinations." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 (Vineyard Area Citizens), fns. omitted.)
"[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. ([Pub. Resources Code,] § 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements' (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564), we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court 'may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,' for, on factual questions, our task 'is not to weigh conflicting evidence and determine who has the better argument.' (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
"In evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. For example, where an agency failed to require an applicant to provide certain information mandated by CEQA and to include that information in its environmental analysis, we held the agency 'failed to proceed in the manner prescribed by CEQA.' (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; see also Santiago County Water Dist. v. County of Orange [(1981)] 118 Cal.App.3d [818,] 829 [EIR legally inadequate because of lack of water supply and facilities analysis].) In contrast, in a factual dispute over 'whether adverse effects have been mitigated or could be better mitigated' (Laurel Heights I, supra, 47 Cal.3d at p. 393), the agency's conclusion would be reviewed only for substantial evidence. Thus, in Laurel Heights I, we rejected as a matter of law the agency's contention that the EIR did not need to evaluate the impacts of the project's foreseeable future uses because there had not yet been a formal decision on those uses (id. at pp. 393-399), but upheld as supported by substantial evidence the agency's finding that the project impacts described in the EIR were adequately mitigated (id. at pp. 407-408)." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.)
We proceed to apply these standards to plaintiffs' CEQA allegations.
A. Description of cultural resources
The Foundation claims the EIR failed to properly describe the cultural resources existing on the site and, in particular, eight cultural sites that, despite project redesigns, are in harm's way. It asserts the EIR failed to provide an adequate description of the existing cultural resources and failed to identify any mitigation measures to remedy impacts to the resources. It also faults the City for not providing detailed information about the sites to the State Historic Preservation Officer upon the latter's request.
The Foundation acknowledges the City provided information and proposed mitigation measures regarding the eight affected cultural sites in the City's Additional Responses, but it claims this information came too late. CEQA, the Foundation argues, required this information to be included in the publicly circulated RDEIR, and the City allegedly abused its discretion by failing to comply with this directive.
We disagree with the Foundation's argument. The City's description of the existing cultural resources in all of the documents that comprise the EIR satisfied CEQA's requirement to make a good faith effort at describing the existing conditions, particularly in light of conflicting requirements that prohibited the City from disclosing detailed information about the location and type of cultural resources on the site.
CEQA, federal law, and other state laws uniformly require the City to protect the confidentiality of Native American cultural resources to preserve them from harm. The Foundation's argument, purportedly in the guise of protecting the environment, actually would defeat the confidentiality and expose the resources to a possible destruction. This would turn CEQA on its head.
1. Additional background information
a. RDEIR's description and analysis of cultural sites and proposed mitigation measures
The RDEIR begins its analysis of the project's impacts on cultural resources by providing a 20-page overview of the prehistoric and historic settlement of the Sierra Nevada and the Central Valley, and the archeological and ethnographic studies that have documented that settlement. The discussion emphasizes studies that were performed in areas near the project site. Prehistoric Native American sites and artifacts have been found and are well documented in areas around Rocklin, Newcastle, and Auburn. The discussion also relates the history of the area since Americans of European descent arrived in the 1800s.
Regarding the project site, the RDEIR states record searches and field surveys resulted in locating 34 prehistoric period resources and one historic period resource within the project site. Test excavations at some of these sites encountered Native American remains.
The RDEIR noted that in 2002, the United States Army Corps of Engineers and the State Historic Preservation Officer (SHPO) determined these resources formed an archaeological district eligible for listing on the National Register of Historic Places under the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (NHPA). This determination was based on a study prepared by Peak & Associates referred to as a DOE, an acronym for A Determination of Eligibility and Effect on Cultural Resources within the Clover Valley Lakes Project Area.
The RDEIR stated that because the Army Corps of Engineers and the SHPO had determined the proposed project could adversely affect the resources in this archaeological district, the Army Corps of Engineers had initiated a process under section 106 of the NHPA to develop a management plan known as a Historic Properties Management Plan (HPMP) to mitigate the project's adverse effects on the cultural resources. (The HPMP was submitted to the Army Corps of Engineers and the SHPO for review and approval in July 2007.)
The RDEIR identifies the resources located in the project site by a number on a chart, and for each resource it notes whether the resource contains bedrock mortars, a midden,*fn2 circular-shaped depressions, human remains, projectile points, ground stone, lithic tools,*fn3 and obsidian debitage.*fn4 The RDEIR does not provide any further identification or description of the resources, such as their location, size, or significance. It does not do so because that information is contained in the proposed HPMP, and that document is confidential and not available for public review in order to protect against vandalism and artifact collecting.
The RDEIR concluded the project could result in a potentially significant impact to these historic and cultural resources. The RDEIR explained: "Although project site design has been revised a number of times to avoid and protect resources, not all of the resources can be avoided through project design. A program of mitigation has been designed to satisfy the federal requirements for this undertaking in the Historic Properties Management Plan (HPMP) that require[s] approval by the U.S. Army Corps of Engineers and the State Office of Historic Preservation. Due to the sensitive nature of information contained in the HPMP, the HPMP is not available for public review. Implementation measures for the cultural resources sites include installation of temporary construction fencing to avoid short-term impacts, as well as the use of monitors during construction to ensure that sites are not damaged or disturbed during construction. However, for some cultural sites, data recovery excavations may not occur prior to the initiation of construction; therefore, the proposed project would result in a potentially significant impact." (Original boldface type and italics.)
To reduce this impact to a less than significant level, the RDEIR proposed a number of mitigation measures. Prior to receiving a grading permit, real parties in interst must hire an archaeologist who will assist in providing "cultural resource sensitivity training" to all construction personnel. Real parties in interest must monitor all earth-moving activities, and place construction fencing around cultural resource sites.
Despite project redesigns, eight resource sites could not be protected. The FDEIR required data recovery excavations to occur at those sites, as detailed in the confidential HPMP. Project construction was not to commence until the Army Corps of Engineers accepted a preliminary report from the testing done at those sites.
In addition, to protect against vandalism and artifact collecting resulting from additional people living near the resource sites, those sites identified in the HPMP to be preserved are to be permanently fenced prior to the issuance of a grading permit to minimize access. Also, monitoring and checking of the sites will occur throughout each year.
If during construction an archeological or historical resource is discovered, all work will immediately stop within 100 feet of the find until Native American representatives and archaeologists can determine whether the resource qualifies for protection and mitigation measures can be recommended and implemented. If human remains are found, all work will be halted until the coroner makes final disposition of the remains.
b. Comments to RDEIR analysis and City's response
After it circulated the RDEIR for public comment, the City received numerous requests to disclose the location and character of the cultural resources. In the Master Responses included in the Final EIR, the City explained its refusal to provide additional identifying information. It feared disclosure would result in vandalism to the resources. It also claimed its refusal was consistent with the NHPA, which required a federal agency not to disclose to the public information about a historical resource's location and character if disclosure would harm the resource. The City in the RDEIR had disclosed the archaeologically important elements of each cultural site within the context of an extensive discussion of the ethnographic context.*fn5 That description, the City stated, was adequate to meet the disclosure purposes of CEQA while protecting the resources from harm. Personnel with a need-to-know had access to the DOE and the draft HPMP, which in the federal permit process would be reviewed by the Army Corps of Engineers and the SHPO. The City claimed the federal process was much more stringent than the CEQA process and would develop the best possible preservation and mitigation measures for the cultural sites.
One of the requests for additional information came from the SHPO. Following his review of the RDEIR, the SHPO wrote to the City and requested copies of the DOE and the draft HPMP. The City responded by giving the SHPO a copy of the DOE. The City noted that the SHPO had already received the DOE as part of determining the cultural resources on the site qualified as an archeological district under the NHPA.
The City, however, refused to give the SHPO a copy of the draft HPMP as part of the CEQA review process for the reasons already mentioned. However, the SHPO would obtain a copy of the HPMP as part of its requirement under the NHPA to consult with the Army Corps of Engineers before the Corps grants permits for the project. This consultation would occur after the CEQA process was completed. The City included copies of this correspondence in the FEIR.
c. Comments to FEIR and City's response in its Additional Responses
Following its release of the FEIR, the City received additional comments criticizing its refusal to disclose the location and character of the cultural sites. The SHPO criticized the RDEIR and the FEIR for not providing an adequate description of the archeological sites and their significance because the DOE and the draft HPMP were not made available to the public. The SHPO claimed that "[w]hile sensitive information such as archeological site records, sacred sites or maps by law should not be made available, a redacted, but complete version of the reports used in the preparation of a [draft EIR] is required to either be circulated or made available."
The SHPO also claimed the RDEIR and the FEIR failed to include any mitigation measures for the project's impacts to the cultural resources. He faulted the City for deferring to mitigation measures that would eventually be developed under the HPMP process as fulfilling the CEQA requirement to include mitigation measures in the EIR.
The Foundation made similar complaints against the FEIR. It also noted the City, in the original draft EIR prepared in 2002, had provided a narrative description of the cultural sites. It argued the City was required to do the same in the RDEIR.
The City responded to these criticisms in its Additional Responses. The City recognized CEQA's demand to make a good faith effort at full disclosure, but it was also bound to follow legal requirements that prohibited full disclosure of information concerning cultural resources. CEQA prohibits the disclosure of information about the location of archaeological sites and sacred lands, or any other information subject to disclosure restrictions under the state Public Records Act (Gov. Code, § 6254). (Guidelines, § 15120, subd. (d).)*fn6 The Public Records Act, in turn, does not require disclosure of any records of Native American graves, cemeteries, places, features, and objects in the possession of a local agency. (Gov. Code, § 6254, subd. (r).)
Moreover, as already mentioned, the NHPA authorized federal agencies not to disclose information regarding the location and character of a historic resource. The City stated its refusal to disclose more information than it did in the RDEIR was in compliance with the federal law's intent.*fn7
The City rejected the Foundation's criticism that it should have provided a narrative description of the cultural resources in the RDEIR instead of providing the information in a summary table. The City argues its use of the summary table was "merely a different way to communicate nearly the same information."
Despite its claim that it had complied with the demands of CEQA regarding disclosure of cultural resources, the City nonetheless provided as part of its Additional Responses more information concerning the eight cultural resource sites the project would impact. The information, depicted in a table called the Clover Valley Cultural Resources Description, Treatment and Management Table, was derived from redacted site descriptions contained in the DOE and the draft HPMP. The City provided the table "as a clarification or explanation and does not represent any new environmental effects."
This table provided more information than the summary table used in the RDEIR. The table named each of the eight affected cultural sites by number, and for each site recited a brief site description, the amount of the site that would be affected by the project, the reason for the effect, and the management and treatment actions planned to mitigate the effect.
For example, for the cultural site designated as no. CVL-7, the table described the site as "Bedrock mortar features. Associated deposit of cultural material. Relatively deep (70 centimeter) deposit of cultural material in the central portion and a much shallower and less dense deposit in the western portion. Three projectile points; two are large. The third point is a Rose Springs Contracting Stem point."
The portion of the resource site area affected by the project equaled 3,082.9 m2 , or roughly 3/4 of an acre. The impact would arise from construction activities, permanent infrastructure, and house pads. To mitigate the impact, the City would require permanent fencing around the site area not directly affected by construction, bi-annual monitoring, and data recovery excavations. Similar descriptions were made for each of the eight affected sites.
Regarding the claim that the City was wrongfully deferring mitigation until the federal HPMP process was completed, the City in its Additional Responses reminded the Foundation that the RDEIR included a number of mitigation measures to reduce impacts to a less than significant level independent of the HPMP ...