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Citizens For A Healthy Community et al v. City of Red Bluff et al

December 7, 2011

CITIZENS FOR A HEALTHY COMMUNITY ET AL., PLAINTIFFS,
v.
CITY OF RED BLUFF ET AL., RESPONDENTS; WAL MART, INC., REAL PARTY IN INTEREST AND APPELLANT. RED BLUFF CITIZENS FOR SENSIBLE PLANNING ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF RED BLUFF ET AL., RESPONDENTS; WAL MART, INC., REAL PARTY IN INTEREST AND APPELLANT.



(Super. Ct. No. CI58342) (Super. Ct. No. CI61476)

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

Citizens for a Health Community v. City of Red Bluff

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal and a cross-appeal from a judgment granting in part and denying in part a petition for writ of mandate directing the City of Red Bluff (City) to stay construction activities and remedy deficiencies in the environmental analysis of a project to construct a Wal-Mart supercenter in Red Bluff, California.

Petitioners and appellants Red Bluff Citizens for Sensible Planning, Wilkie Talbert, Clarice Meyer, and Mary Anker challenge the adequacy of the information provided in the Recirculated Portions of the Draft Environmental Impact Report (RPEIR) that concern noise and traffic. Cross appellant Wal-Mart Stores, Inc. (Wal-Mart) challenges the trial court's ruling that the environmental analysis include additional information regarding single event noise impacts.

The challenges involve the California Environmental Quality Act (CEQA) and its Guidelines, which direct that scientific reports be cited in the Environmental Impact Report (EIR) by page and section number where possible, and that technical data be included as an appendix to the EIR. (Pub. Res. Code, § 21061; Cal. Code Regs., tit. 14, §§ 15147 & 15148 (hereafter Guidelines).) Although technical data need not be repeated in its entirety in the appendix it must be "reasonably available for inspection at a public place or public building." (Pub. Res. Code, § 21061.) The information provided shall be "sufficient to permit full assessment of significant environmental impacts by reviewing agencies and members of the public." (Guidelines, § 15147.)

The technical data supporting the RPEIR's conclusions regarding parking lot sweeper noise and single event noise impacts was not contained in the body of the RPEIR or in an appendix thereto, nor does the record indicate that the information was made available to the public. Nor was the report of the City's noise consultant made available.

The trial court found the information provided in the RPEIR was sufficient as to sweeper noise, but not as to single event noise impacts. We agree with respect to single event noise but disagree with respect to sweeper noise. We also disagree with the trial court's conclusion that the doctrine of res judicata barred petitioners from asserting CEQA violations for failure to analyze noise and traffic impacts from the addition of a northwest truck delivery area that was not a part of the original project described in the initial EIR. However, any failure to separately analyze a delivery area on the northwest side of the building was not prejudicial error.

We shall affirm that portion of the trial court judgment directing the City to supplement the environmental analysis with respect to single event noise impacts. However, we shall reverse that portion of the judgment denying petitioners' request to direct City to supplement the environmental analysis with respect to parking lot sweeper noise.

FACTUAL AND PROCEDURAL BACKGROUND

Wal-Mart submitted its application to construct a supercenter (Project) to City on October 16, 2003.*fn1 The Project as originally submitted consisted of 212,000 square feet of retail space plus associated parking. The Project is bordered by: (1) Reeds Avenue on the north, and beyond that a residential development; (2) Mill Street on the east, and beyond that an existing Wal-Mart; (3) Luther Road on the south, and beyond that a church and assisted living facility, and (4) residences on the western border.

The Red Bluff City Council certified the Final Environmental Impact Report (FEIR) for the Project at its meeting on November 13, 2006. Petitioners Citizens for a Healthy Community thereafter filed their first petition for writ of mandate, alleging multiple violations of CEQA.

The trial court partially granted the petition in February 2008. It directed City to prepare and circulate a supplemental EIR addressing the following: (1) parking supply, (2) single event sounds on neighboring residents, (3) nighttime ambient noise, (4) low speed traffic noise, (5) pure tone noise generated by trucks and refrigeration units, (6) precise boundaries and distance of the building to the property line, (7) parking lot sweeper noise, and (8) sound barrier walls.

Thereafter, Wal-Mart filed a revised project application that provided for a reduced building size and located the building closer to the northern border of the property. City made modifications to the project description and site plan, and conducted additional analyses. It revised portions of the EIR in response to the court ruling and recirculated portions of the EIR (RPEIR). The RPEIR contained a revised project description to clarify redesigned features of the project and a revised noise section, since most of the points raised in the trial court's ruling pertained to noise-related impacts.

On November 24, 2008, City certified the FEIR as supplemented by the RPEIR and re-approved the project. Petitioners Red Bluff Citizens for Sensible Planning thereafter filed a second petition for writ of mandate. Again, the trial court granted the petition in part.

Petitioners Red Bluff Citizens et al., appeal from that part of the trial court's ruling holding: (1) that res judicata barred review of whether the RPEIR adequately addressed traffic impacts and noise created by the northwest vendor delivery area; and (2) that the information provided regarding parking lot sweeper noise was adequate. Petitioners also argue the RPEIR did not consider the noise generated by onsite truck circulation.

Wal-Mart's cross-appeal focuses on the trial court's ruling with respect to sound measurements that were taken to satisfy the first judgment, which directed City to include an evaluation of single event sounds on neighboring residents, particularly at night. Wal-Mart argues the trial court erred in holding: (1) that City's response to comments was inadequate with respect to whether tests at the El Camino truck stop sufficiently replicated conditions present at the Project; (2) that City's failure to include background noise levels from the West El Camino truck stop tests violated CEQA's information and disclosure requirements; and (3) that City's conclusion that Reeds Avenue residents will not be subjected to significant single event level sound impacts is not supported by substantial evidence.

DISCUSSION

I

Res Judicata

Petitioners argue that the redesigned project added a delivery area on the west side of the loading dock, but the RPEIR did not include any information about truck deliveries in this area. They argue that because the project was changed, the trial court erred in concluding that res judicata barred them from challenging the RPEIR based on the RPEIR's lack of information about the potential impacts of including a west side delivery area.

In Federation of Hillside and Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1203, the court held that where the "CEQA cause of action in the prior proceeding and the CEQA cause of action in the present proceeding are based on the city's alleged failure to comply with CEQA with respect to the same project, the same EIR, and substantially the same findings[,]" the second cause of action is barred.

Petitioners do not argue that the findings or the EIR are different this time. They do argue that the project has changed because the initial EIR did not disclose that the west side of the loading dock would be used for truck unloading. We agree with petitioners that there is no evidence that the northwest area was previously designated as a delivery area. We nevertheless hold that the failure to separately analyze noise and traffic impact of the west side loading area was not prejudicial.

A. Noise from Northwest Delivery Area

Petitioners, in their opening brief to the trial court, argued that the RPEIR should have considered the noise generated by medium-sized trucks unloading on the northwest side of the building, and that such an analysis was not performed in the first EIR because the area west of the building was not previously designated for truck unloading activities.

Respondents argued below that the original site plan provided for a west side vendor unloading area. Consequently, respondents argued, petitioners' claims regarding truck unloading noise and related traffic impacts from this area are barred by the doctrine of res judicata.

The trial court concluded that the original plans were sufficient to show a delivery area on the northwest side because the area was not available for customer parking, but was accessible to traffic. The court found it was reasonable to assume that both sides of the dock protrusion would be used to receive stock. Because the area was originally intended for deliveries, the trial court concluded petitioners were barred by res judicata from raising any arguments about the area. We disagree.

The revised plan shows a truck dock jutting out from the north side of the store near Reeds Avenue. On the east side of the dock is an area labeled "truck well," and outside the truck well is an area for truck ingress and an area labeled "truck route." On the west side of the dock, a delivery service door is marked. Outside the dock is labeled "pallet/bale recycling area." There is access to Reeds Avenue from both sides of the dock.

The first plan also had a truck dock jutting out from the north side of the store. However, the area off the west side of the dock was smaller in the first plan. It also had an area labeled "bale and pallet storage," but there was no symbol that was marked as a delivery service door.

As evidence that the original plans did not include a delivery area on the northwest side, petitioners point to the following: (1) the plans label the area as bale and pallet storage, but do not label the area as a delivery area; (2) the initial plans show all truck circulation occurring on the northeast side of the store; (3) the initial site plan ...


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