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Forest Tull et al v. Yuba County et al

January 11, 2013

FOREST TULL ET AL., PETITIONERS AND APPELLANTS,
v.
YUBA COUNTY ET AL., DEFENDANTS AND RESPONDENTS; A. TEICHERT & SON, INC., REAL PARTY IN INTEREST AND APPELLANT. FOREST TULL ET AL., PLAINTIFFS AND APPELLANTS,
v.
YUBA COUNTY ET AL., DEFENDANTS AND RESPONDENTS; A. TEICHERT & SON, INC., DEFENDANT AND APPELLANT.



(Super. Ct. No. 03-000774) (Super. Ct. No. 07-000762)

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

Tull v. Yuba County 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A. Teichert & Son, Inc. (Teichert), operates a gravel mine in Yuba County that produces enough aggregate to fill about 600 large trucks per day. Teichert's gravel trucks carry the gravel to market by driving through a residential neighborhood on Hallwood Boulevard and Walnut Avenue. Responding to pleas to circumvent the Hallwood neighborhood, Teichert bought land and started building a private haul road toward the intersection of Kibbe Road and State Road 20. Although Teichert secured a grading permit from Yuba County (County), no environmental impact study was done before road construction began.

Forest and Bobbie Tull (the Tulls*fn1 ) own property adjacent to the haul road. They filed a petition for writ of mandate on grounds that Teichert and the County failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21050 et seq.).*fn2 The trial court dismissed the petition as moot because the County began work on a draft environmental impact report (EIR). We reversed in Tull v. Yuba County (Jan. 31, 2006, C047900) [nonpub. opn.] (Tull I), holding that the County violated CEQA by issuing a grading permit before studying alternate routes and that the Tulls' petition was not mooted by the work on the draft EIR.

Following remand, the Tulls sought attorney fees under the public attorney general doctrine. The trial court awarded fees to the Tulls in an amount substantially less than they sought. The Tulls appealed, and this court reversed in Tull v. Yuba County (July 7, 2008, C054917) [nonpub. opn.] (Tull II).

After the remittitur issued in Tull II, a final EIR was certified by the County's planning commission. Among the final EIR's more important findings was that no feasible alternative existed to Teichert's already partially completed private haul road. The Tulls challenged the certification of the final EIR -- first before the County's board of supervisors and then in superior court. The Tulls' operative petition for writ of mandate alleged five causes of action for (1) several violations of CEQA, including inadequacy of the final EIR regarding drainage, noise, traffic safety, and feasibility of alternate routes for the haul road, (2) declaratory relief regarding Teichert's ongoing mining operations at the Hallwood site, (3) issuance of a vested rights letter by the County to Teichert in violation of this court's decision in Calvert v. County of Yuba (2006) 145 Cal.App.4th 613 (Calvert), (4) improper reissuance of a grading permit to Teichert after Tull I but before a final EIR had been properly certified, and (5) declaratory relief challenging Yuba County ordinance 11.10.580 as violating CEQA Guidelines section 15090, subdivision (a).

The trial court ruled the Tulls' writ petition set forth several valid CEQA claims. However, the court found that the Tulls' cause of action challenging the vested rights letter was barred by the statute of limitations, and that the challenged County ordinance did not violate CEQA.

On appeal, Teichert contends the trial court erred because (1) substantial evidence supports the County's conclusion that alternate routes are infeasible, (2) the EIR properly studied the traffic noise impacts expected to result from the project using the correct threshold of significance standard for assessing the noise generated by the project, (3) the EIR properly analyzed drainage impacts, and at no point in the proceedings before the County did the Tulls raise this issue, and (4) traffic safety impacts were also properly analyzed in the EIR.

The Tulls cross-appeal, arguing the trial court should have granted relief on the entirety of their operative petition because (5) the County reissued the grading permit in violation of Tull I, (6) the delayed discovery rule renders timely their challenge to the vested rights letter to Teichert, and (7) the County's ordinance conflicts with CEQA by giving the planning commission authority to certify a final EIR even though it lacks power to approve or reject a project.

As to the appeal by Teichert, we conclude the final EIR did not properly consider all feasible alternate routes to Teichert's private haul road, how the project would result in noise and vibration impacts, or how the County's plan to condemn land for an undisclosed drainage pond would affect the area's hydrology and hydraulics. However, the final EIR properly assessed and responded to concerns about the traffic safety impacts arising out of locating the haul road at the intersection of Kibbe Road and State Road 20.

As to the Tulls' cross-appeal, we conclude the County erroneously reissued a grading permit for the private haul road before all feasible alternatives have been properly assessed in the EIR process. We also conclude the trial court correctly dismissed the Tulls' challenge to Teichert's vested rights letter on grounds that it was barred by the statute of limitations. Finally, we invalidate Yuba County ordinance 11.10.580 because it allows a final EIR to be certified without ever being reviewed and considered by a decisionmaking body with power to approve or disapprove the project. As this case illustrates, the County's procedure allows certification of a final EIR even in the absence of compliance with Guidelines section 15090, subdivision (a)(2).

Accordingly, we reverse and remand the matter with instructions.

BACKGROUND

The Haul Road's Initial Negative Declaration

As the trial court recounted, the following facts regarding the haul road are undisputed: "Teichert owns and operates an aggregate surface mine operation approximately 8 miles east of Marysville on the north side of the Yuba River, known as the Hallwood mine. Teichert uses existing roads through the Hallwood neighborhood to the west to haul its gravel to market.

"On June 12, 2000, the County -- without providing public notice or holding a public hearing -- issued a letter to Teichert, purporting to 'confirm' Teichert's 'vested rights' under SMARA [the Surface Mining and Reclamation Act (. . . § 2710 et seq.)] to conduct surface mining operations at its Hallwood mine site.

"In March 2003, Teichert commenced construction of a new, private access road for its Hallwood mine site. If completed, Teichert's new road will route approximately 600 gravel trucks per day through [the Tulls'] neighborhood. After completing the road to within approximately 50 feet of the [State Road] 20/Kibbe [Road] intersection, Teichert applied for, and the County summarily issued, a grading permit for the road portion of Teichert's private project. Teichert then applied to the County for the encroachment permits from the County and Caltrans needed to connect its newly constructed road to [State Road] 20 at the Kibbe Road intersection.

"In June 2003, the County released a draft initial study/mitigated negative declaration ('MND') pursuant to CEQA, discussing the road project's potential impacts at the intersection of [State Road] 20 and Kibbe Road. The study described the project as involving only the intersection improvements required to connect the new road to [State Road] 20, but asserted that the road Teichert had built was not part of the project because the road had already been completed under the grading permit.

"In October 2003, [the Tulls] filed this action, challenging the County's violations of CEQA in issuing its 2003 grading permit with no environmental review, and by improperly segmenting or 'piecemealing' its CEQA review for the project by limiting its MND to considering only the intersection improvement portion of the project. In May 2004, Judge Timothy Evans of the Yuba County Superior Court dismissed [the Tulls'] action as moot, reasoning that the County had commenced (but not yet completed) the preparation of an environmental impact report ('EIR') for the 'whole' of the project."

Tull I

The Tulls appealed and argued that the County violated CEQA by segmenting Teichert's new road project into two projects for purposes of environmental review and by issuing the grading permit for the haul road before completing CEQA review of the entire project. (Tull I, supra, C047900.) The Tulls also argued that their petition was not mooted by the County's eventual decision to prepare an EIR for the haul road. (Tull I, supra, C047900.)

On January 31, 2006, this court reversed the judgment of dismissal. (Tull I, supra, C047900.) We concluded that the project had been improperly segmented by the County because "the undisputed facts demonstrate the project consisted of providing Teichert a new road from its mine to State Route 20. The grading and construction of the road, along with the intersection improvements necessary to connect the road to State Route 20, were all part of the same project. The plans submitted to the County for the grading permit disclosed this fact. They expressly contemplated connecting the road to State Route 20 as part of the project of constructing the road. Moreover, while the road was being constructed, the County was already preparing the initial study for the intersection improvements. There can be no dispute the grading and construction of the road and the construction of the intersection improvements connecting the road to State Route 20 were one and the same project. The County erred by segmenting the project and excluding the grading permit from environmental review of the whole project." (Tull I, supra, C047900.)

In so holding, we rejected Teichert's argument that the grading permit did not trigger the EIR requirement because its issuance by the County was ministerial in nature. We explained that "[e]ven if the grading permit was ministerial -- an issue we do not decide -- it still would be part of the whole project. Because part of the project required discretionary government permits that were not exempt from CEQA, the whole project, including portions that individually would be exempt from CEQA, was subject to environmental review. (Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 640.)" (Tull I, supra, C047900.)

Tull I also found that the Tulls' original petition was not rendered moot by the ongoing EIR process. This court noted that "the County has prepared a draft EIR which addresses many of plaintiffs' issues. However, the document is a draft EIR. It still is subject to revision, completion as a final EIR, and certification by the County. The need for the court's continuing jurisdiction thus still exists." (Tull I, supra, C047900.) We explained the gravamen of the problem with the County issuing the grading permit before engaging in the EIR process as follows: "Here, the error occurred when the County allowed construction to proceed on the new road without first analyzing it as part of the entire road and interchange improvement project in an appropriate environmental document. Had the County complied with CEQA, the County may not have approved the road in its current location or may have imposed mitigation measures which the road does not now incorporate. Thus, the grading permit cannot be allowed to stand when the potential remains for the County to alter the project or deny the encroachment permits in order to comply with CEQA." (Tull I, supra, C047900, italics added.)

Accordingly, this court remanded the matter to the trial court with directions "to reinstate and grant the petition and order issuance of a peremptory writ of mandate in accordance with the requirements of . . . section 21168.9 and consistent with the instructions contained in [our] opinion." (Tull I, supra, C047900.)

Certification of the Final EIR

While the appeal in Tull I was pending, the County's planning commission certified the final EIR over the Tulls' objection in January 2006. As the trial court found, the Tulls "appealed the Planning Commission's certification of the EIR to the Board of Supervisors. On June 6, 2006, the Board denied [the Tulls'] administrative appeal, but made no decisions regarding 1) whether the Project should be approved; or 2) if so, whether the Project should be approved at an alternative location, in order to reduce or avoid the significant impacts identified in the EIR.

"On or about November 13, 2006, the County's Public Works Director issued a new grading permit for the Project. On November 22, 2006, [the Tulls] filed this supplemental proceeding challenging, inter alia, 1) the validity of the County's June 2000 vested rights letter; and 2) the County's failure to comply with CEQA or the Court of Appeal's January 31, 2006 decision, before summarily re-issuing the invalidated grading permit.

"In August 2007, the Board of Supervisors met and issued an encroachment permit for the project over [the Tulls'] continued objections." (Citations to the administrative record omitted.)

Tull II

After remand in Tull I, the Tulls moved for attorney fees under Code of Civil Procedure section 1021.5. (Tull II, supra, C054917.) The trial court awarded fees but "instead of determining and using reasonable market rates to calculate the fees to be awarded, the court used the rates found in the contract between plaintiffs and their attorneys. It used this method of reducing the requested rates after determining that part of the litigation was unnecessary." (Ibid.) The Tulls appealed, and we reversed in July 2008.

In Tull II, supra, C054917 we held that the trial court erroneously determined part of the Tulls' action to have been unnecessary. (Ibid.) Consequently, we reversed with directions that the trial court make "an award of attorneys' fees based on reasonable market rates, as required by section 1021.5." (Ibid.)

The Operative Petition

In March 2009, the Tulls filed a first amended supplemental petition for writ of mandate and complaint for declaratory and injunctive relief. The petition named as defendants: Yuba County, the Yuba County Board of Supervisors (Board), the Yuba County Planning Commission, and the Yuba County Community Development Department (collectively, County agencies). Teichert was listed as the real party in interest. The petition alleged five causes of action for (1) violations of CEQA due to inadequate EIR for the proposed haul road, (2) declaratory relief regarding Teichert's ongoing mining operations at the Hallwood site, (3) a mandamus violation due to the vested rights letter issued by the County to Teichert, (4) a mandamus violation in the County's reissuance of a grading permit to Teichert, and (5) declaratory relief challenging the County (planning commission) authority to approve the haul road project.

Teichert and the County demurred to the third, fourth, and fifth causes of action. The trial court sustained the demurrers with leave to amend as to the third cause of action and without leave to amend as to the fourth and fifth causes of action. The court stayed the second cause of action for declaratory relief pending resolution of the Tulls' first and third causes of action. The Tulls amended their petition, restating their third cause of action. After briefing by the parties and a hearing, the trial court dismissed the third cause of action on the merits after finding that the statute of limitations had expired. The trial court subsequently ruled the County committed several procedural violations of CEQA in certifying its EIR and approving the project.

After the Tulls voluntarily dismissed their second cause of action for declaratory relief, the trial court entered a final judgment. From the judgment, Teichert appealed, and the Tulls cross-appealed.*fn3

OVERVIEW OF CEQA

"'[T]he purpose of CEQA is to protect and maintain California's environmental quality. With certain exceptions, CEQA requires public agencies to prepare an EIR for any project they intend to carry out or approve whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental effect . . . .' (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 106-107, fns. omitted.) The California Supreme Court has 'repeatedly recognized that the EIR is the "heart of CEQA." [Citations.] "Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR 'protects not only the environment but also informed self-government.'"'" (Center for Sierra Nevada Conservation, supra, 202 Cal.App.4th at p. 1169, quoting Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II) fn. omitted.)

To comply with CEQA, "[p]ublic agencies must 'prepare, or cause to be prepared by contract, and certify the completion of, an [EIR] on any project that they intend to carry out or approve which may have a significant effect on the environment.' (§ 21151, subd. (a).) Section 21065 defines 'project' to include 'an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] . . . [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.' The Guidelines further define project as 'the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: [¶] . . . [¶] (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.' (Guidelines, § 15378, subd. (a)(3).) Under CEQA, '"'Project' is given a broad interpretation . . . to maximize protection of the environment."'" (Center for Sierra Nevada Conservation, supra, 202 Cal.App.4th at pp. 1169-1170, quoting Riverwatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.)

"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.' (. . . § 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.' [Citations.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 (Vineyard), fns. omitted.) "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' [citation], 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.' [Citation.]" (Id. at p. 435.) "A public agency's decision to certify the EIR is presumed correct, and the challenger has the burden of proving the EIR is legally inadequate." (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1545-1546, citing Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530; Save Our Peninsula Com. v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.)

In reviewing the record in a CEQA case, we review the agency's action rather than the trial court's subsequent decision. We "resolve the substantive CEQA issues on [appeal] by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County's factual determinations." (Vineyard, supra, 40 Cal.4th at p. 427.) Mindful of these principles of review, we proceed to consider Teichert's contentions.

APPEAL BY TEICHERT

I

Whether the County Properly Considered Alternative

Routes for the Haul Road

Teichert contends the trial court erred in requiring the County to reassess alternate routes to the private haul road, including a route along an irrigation canal (Cordua Canal route), because substantial evidence supports the County's conclusion that these alternate routes are infeasible. We disagree. As we explain, after characterizing the Cordua Canal route as "environmentally superior," the County rejected it as infeasible because eminent domain proceedings would be required to acquire the land. This was error because the County was perfectly willing to use eminent domain proceedings to acquire land to complete the private haul road.

A.

The County's Rejection of the Cordua Canal Route as Infeasible

In Tull I, this court held that the County violated CEQA requirements by issuing a grading permit to Teichert before properly assessing the project to determine where the haul road would best be located. (Tull I, supra, C047900.) On this point, we noted that "[h]ad the County complied with CEQA, the County may not have approved the road in its current location or may have imposed mitigation measures which the road does not now incorporate." (Ibid., italics added.)

During the EIR process, several alternatives to Teichert's private haul road were proposed. One of the alternatives called the "alternative haul road" was analyzed in the EIRs. A similar route (Cordua Canal route) that closely followed the Cordua irrigation canal also was proposed.*fn4 The Cordua Canal route presents a slightly longer distance for Teichert trucks to travel between the gravel mine and State Road 20. However, unlike the existing Hallwood neighborhood or Teichert's private haul road to Kibbe Road and State Road 20, the Cordua Canal route does not route trucks in close proximity to residences.

The draft EIR acknowledged the merit of the Cordua Canal route by stating: "When comparing the alternatives, the [Cordua Canal route] would best meet the project objectives. The No Project/No Development Alternative fails to meet the first and second objectives because the existing traffic and noise impacts to the residential neighborhoods along Hallwood Boulevard and Walnut Avenue would continue and a portion of the trucks associated with Teichert's Hallwood facility would continue traveling a long, indirect route to access and exit the site. Conversely, the [Cordua Canal route] includes a more direct route than currently exists, although less direct than the private haul road associated with the proposed project, and does not pass by any sensitive receptors, minimizing noise impacts. The [Cordua Canal route] generally meets all of the project objectives, except the second and third objectives,[*fn5 ] because it offers a longer haul route than does the proposed project and because the property owner has indicated that the land required to implement the [Cordua Canal route] is not available." Although the draft EIR "considered [the alternate route] environmentally superior to the proposed project [on Teichert's private haul road]" (italics added), the draft EIR rejected it as "potentially infeasible in light of the difficulty of property acquisition."

Commenters on the draft EIR noted the inconsistency in the County's approach to eminent domain. Specifically, the County indicated that it was willing to exercise its power of eminent domain to complete Teichert's private haul road at the Kibbe Road intersection but was not willing to consider eminent domain to acquire the Cordua Canal route. As one commenter stated, "it is absolutely clear that if you can exercise the power of eminent domain for the preferred project, you can also do so for the environmentally superior one."

Charles Matthews, the Cordua Irrigation District chairman, stated at a hearing on the project: "[W]hen I read your environmental document, it said that there was no alternatives [sic] and, I guess, the first alternative we would wonder about is why the, the road didn't curve on the south side of a thing and keep Kibbe Road straight on the north so it was not impacting the people there. I don't know if this is enough of an alternative that it would be mentioned and I know you're having the way [sic] to make a negative declaration so you don't have to do anymore environmental work and I would urge you to make sure that, in that part, that says there's no alternatives [sic] that somehow it's discussed."

The Tulls argued that "if acquiring a right-of-way over the [Cordua Canal route] through eminent domain is infeasible because this is a 'private project,' then the project cannot be approved in the first instance, regardless of location. On the other hand, if the project is sufficiently 'public' to justify the exercise of eminent domain, then the County's and CalTrans' power to condemn applies equally to the proposed project and the alternative analyzed in the EIR. The only reason that the Draft EIR presents for the 'Potential unfeasibility' of the [Cordua Canal route], is that there is no willing seller. Therefore, if a sufficiently public purpose exists to justify condemnation in support of the project as proposed, the EIR's determination that the [Cordua Canal route] may be infeasible is unsupported by substantial evidence." (Footnotes omitted.)

The final EIR's response to the Tulls' argument states, in its entirety: "All of the areas of the project site that are proposed to be privately owned were acquired from willing sellers. The use of eminent domain is only proposed for those portions of the project site sought for acquisition by Caltrans or Yuba County." The County thus proposed to exercise its power of eminent domain only as to the private haul road's intersection at Kibbe Road and State Road 20. As the final EIR states: "The proposed intersection improvements at Kibbe Road and [State Road] 20 would serve the public purposes of improving traffic safety at that intersection." Notably, the improvement of traffic safety is not among the County's stated objectives for the project.

The final EIR expressly rejects the use of eminent domain for the Cordua Canal route where it states that this route "would require condemnation of private property for private haul road purposes (i.e., those areas outside of and not proposed for inclusion within state and County rights-of-way)." Thus, the Cordua Canal route was rejected because it did not appear feasible without eminent domain proceedings.

In denying the Tulls' appeal of the certification of the final EIR, the County explained that "County staff researched the feasibility of the Cordua Canal [route], including a map of the canal right-of-way and the original 1876 deed granting a 20-foot wide 'strip of land' for 'the purpose of a water ditch.' Based on this information, the Cordua Canal [route] is not feasible for two reasons. First, the canal right-of-way is too narrow to accommodate the proposed haul road. The canal right-of-way is 20 feet wide, as clearly stated in the original 1876 grant deed. The proposed haul road is more than twice as wide, with a minimum width of 40 feet, not including required side slopes and drainage features. . . . Thus, even if the existing Cordua Canal were placed in [a] culvert underneath the haul road, the width of the haul road alone would far exceed the width of the Cordua Irrigation District's right-of-way.

"Second, the use of the Cordua Canal right-of-way for haul road purposes would appear to conflict with the requirements of the 1876 grant deed. Specifically, the 1876 grant deed included the express requirement that the right-of-way be used for 'the purpose of a water ditch.' The use of the Cordua Irrigation District's right-of-way for a private haul road appears to be inconsistent with this requirement. Thus, the Cordua Canal [route] proposed by Charles Matthews is not a feasible alternative to Teichert's proposed private haul road at Kibbe Road."

In reviewing the final EIR, the trial court in this case "agree[d] broadly with the [Tulls'] criticisms of the EIR's treatment of the alternative routes for the haul road." In particular, the court noted that two issues needed to be further addressed by the County in an EIR:

"The first issue is the impact of the United States Supreme Court's decision in Kelo v. City of New London, Connecticut (2005) 545 U.S. 469. If a project, taken as a whole, has a public purpose it may be possible for a public agency to use its takings power to condemn private property, even though the project may benefit a private party. Kelo, at 480-481, cf: Golden Gate Bridge Highway and Transportation Dist. v. Muzzi (1978) 83 Cal.App.3d 707, 713-714. Thus, Response 3-2 [citation] seems to be predicated on an erroneous interpretation of existing law. While the Court does not purport to determine whether the project, as a whole, has a 'public purpose,' the County's evaluation of alternative routes must be reconsidered in light of a proper understanding of the law in this regard.

"The second salient issue concerns the Cordua Canal [route], and the recitation in the EIR that construction of the haul road there would be inconsistent with the stated purpose of a 'water ditch' in the original grant deed of 1876. The referenced deed does not appear in the record. It may be, or maybe not, that restrictive language in the deed precludes any use other than a 'water ditch.' The mere recitation of the existence of a deed conveying the land for a 'water ditch' does not constitute substantial evidence that the land cannot also be used as a haul road."

B.

CEQA Requires Consideration of Feasible Alternatives

As the California Supreme Court has explained, "[T]he core of an EIR is the mitigation and alternatives sections. The Legislature has declared it the policy of the State to 'consider alternatives to proposed actions affecting the environment.' (. . . § 21001, subd. (g); Laurel Heights, supra, 47 Cal.3d at p. 400.) Section 21002.1, subdivision (a) . . . provides: 'The purpose of an [EIR] is to identify the significant effects of a project on the environment, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.' (Italics added. See also . . . § 21061 ['The purpose of an [EIR] is . . . to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.' (Italics added.)].)

"In determining the nature and scope of alternatives to be examined in an EIR, the Legislature has decreed that local agencies shall be guided by the doctrine of 'feasibility.' '[I]t is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects. . . . [I]n the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.' (. . . § 21002, italics added.)" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564-565 (Goleta Valley).)

CEQA does not require a public agency to consider every imaginable alternative. "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose." (Goleta Valley, supra, 52 Cal.3d at p. 566.) Nonetheless "an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal (. . . § 21002); and (2) may be 'feasibly accomplished in a successful manner' considering the economic, environmental, social and technological factors involved. [Citations.]" (Ibid.) And, as our high court noted, "the government's power of eminent domain and access to public lands suggest that alternative sites may be more feasible, more often, when the developer is a public rather than a private agency." (Id. at pp. 574-575 [collecting authority].) Thus, the willingness to resort to eminent domain to complete a project demands that the other alternatives made possible by eminent domain must also be considered.

C.

The County Failed to Properly Consider the Cordua Canal Route

The County improperly dismissed the Cordua Canal route as infeasible. The impetus for Teichert's search for an alternate route arose out of the noise, vibration, and safety problems that arose when hundreds of gravel trucks traveled through the residential neighborhoods of Hallwood Boulevard and Walnut Avenue. The neighbors around Kibbe Road feared that the same problems would plague the use of Teichert's private haul road. Thus, the Tulls and others suggested a route that would largely avoid any private homes by following an existing irrigation canal.

The Cordua Canal route requires consideration under CEQA because the County's own analysis acknowledged it to be an environmentally superior route. Even so, the alternate route is not perfect. From an environmental perspective, the Cordua Canal route is slightly longer than Teichert's private haul road route. However, the search for an alternative to the Hallwood Boulevard and Walnut Avenue route does not originate from a quest for a shorter route, but from a search for a route that eliminates the disturbance of many heavy trucks rumbling past private homes. To this end, the Cordua Canal route appears to offer a viable alternate to the Kibbe Road location -- which would simply shift the noise and safety risks from one set of homes to another.

In the final EIR, the reasons stated for rejecting the Cordua Canal route as infeasible are inconsistent with other parts of the EIR. The final EIR characterizes the Cordua Canal route as infeasible on grounds that eminent domain proceedings would be necessary to acquire the land. However, Teichert's private haul road is endorsed by the EIRs as the best route even though eminent domain would be necessary to complete the road. It is logically inconsistent for eminent domain to be an option for one route but not another route. Moreover, as the California Supreme Court has held, the exercise of eminent domain power for a project means that a public agency errs insofar as it fails to consider other alternatives that may be possible with the same eminent domain power. (Goleta Valley, supra, 52 Cal.3d at pp. 574-575.) Here, the environmentally superior route was excluded through selective omission of eminent domain as an option.

The County attempted to justify the use of eminent domain for the private haul road route but not the Cordua Canal route. It reasoned that eminent domain would only be necessary for the Kibbe Road/State Road 20 intersection if the private haul road route were employed. Such reasoning perpetuates the County's error in attempting to segment the project into two separate parts: the intersection and the private haul road. We rejected such improper segregation of the project in Tull I, supra, C047900. The only reason for use of eminent domain for the Kibbe Road intersection is to complete Teichert's haul road. There would be no need for a new intersection in the absence of the private haul road.

Either the County is willing to exercise the power of eminent domain for this project or it is not. If so, the County cannot be willing to condemn land for the private haul road route but not the Cordua Canal route. (Goleta Valley, supra, 52 Cal.3d at pp. 574-575.) If not, then the project cannot be approved because the record is clear that the private haul road cannot connect to State Road 20 without the County or CalTrans resorting to eminent domain.*fn6

The County's steadfast willingness to resort to eminent domain at the proposed Kibbe Road intersection means that the rejection of the same for the Cordua Canal route was error. Consequently, the final EIR failed to properly consider the viability of the Cordua Canal route. "Certification of an EIR which is legally deficient because it fails to adequately address an issue constitutes a prejudicial abuse of discretion regardless of whether compliance would have resulted in a different outcome." (Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428.) The trial court correctly concluded the County erred in certifying the final EIR for failure to properly consider feasible alternate routes.

II

Traffic Noise and Vibration Impacts Analysis

Teichert asserts the final EIR properly studied the potential noise and vibration impacts of the private haul road project. While we agree with Teichert that the County used an appropriate threshold of significance standard for assessing noise generated by the project, we must disagree that the final EIR ...


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