California Court of Appeals, Third District, Butte
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Butte County, Stephen E. Benson, Judge. Super. Ct. No. 152682
William D. Kopper for Plaintiffs and Appellants.
Cota Cole, Derek P. Cole, Scott E. Huber and Daniel S. Roberts for Defendants and Respondents.
K&L Gates and Edward P. Sangster for Real Party in Interest and Respondent.
BUTZ, Acting P. J.
In this action under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),  the Friends of Oroville and two individuals (collectively plaintiffs) challenge the City of Oroville’s (the City) approval of an environmental impact report (EIR) for the project at issue—a relocated and expanded Wal-Mart Supercenter to replace an existing Wal-Mart of traditional dimension and retail offerings (the Project).
On appeal, plaintiffs contend the City’s EIR (1) improperly found it was infeasible for the Project to contribute its fair share mitigation for “Year 2030” cumulative traffic impacts along eight intersections of Oroville Dam Boulevard (hereafter Oroville Dam Blvd.), (2) inadequately analyzed the Project’s hydrological impacts, (3) inadequately analyzed the Project’s greenhouse gas emissions, and (4) violated CEQA’s notice requirements. We find merit in plaintiffs’ third contention (in published pt. III.A. of this opinion), agree on a tangential point with their first contention, and reverse on those bases, but otherwise shall affirm the judgment denying plaintiffs’ petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
The Project is a Wal-Mart Supercenter to replace an existing Wal-Mart store in the City. The Project comprises a nearly 200, 000-square-foot building and garden center (about twice the size of the existing Wal-Mart store), and will provide 24-hour retail and grocery services to the City and surrounding areas.
In January 2010, prior to the City’s release of the draft environmental impact report (DEIR), the City adopted resolution No. 7471. This resolution interpreted the City’s general plan to allow roadway segments, rather than intersections, to determine the acceptable level of service for traffic along Oroville Dam Blvd.
Plaintiffs earlier filed an action for writ of mandate challenging resolution No. 7471. In response, the City repealed the resolution; and this necessitated a revision of the DEIR’s traffic section, which was undertaken in a partially recirculated draft environmental impact report (PRDEIR).
In October 2010, the City released the final EIR, which included responses to public and agency comment.
On November 10, 2010, the City’s Planning Commission held a public hearing and approved the EIR and the Project.
Plaintiffs appealed the Planning Commission’s decision resulting in a de novo public hearing before the City’s City Council. This hearing took place on December 2, 2010, and was extended to December 14. On December 14, 2010, the City Council approved the Project by denying plaintiffs’ appeal, certifying the EIR, approving a mitigation program, and adopting findings of fact and a statement of overriding considerations (for significant impacts that could not be mitigated or mitigated fully).
We will set forth specific facts pertinent to the issues on appeal when we discuss those issues.
Standard of Review
“In reviewing... CEQA issues on appeal, we determine, independently from the trial court, whether [the] City prejudicially abused its discretion either by failing to comply with legal procedures or by making a decision unsupported by substantial evidence.” (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1178 (Anderson).)
The substantial evidence standard—i.e., enough relevant information and reasonable inferences to support a fair argument-based conclusion, even if other conclusions might also be reached—is applied in reviewing factually based findings, conclusions and determinations. (Anderson, supra, 130 Cal.App.4th at p. 1178; Cal. Code Regs., tit. 14, § 15384, subd. (a) (CEQA’s regulatory guidelines; hereafter CEQA Guidelines).)
In reviewing the adequacy of an EIR’s environmental analyses, a reviewing court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency in providing informed decisionmaking and informed public participation, thereby meeting the statutory goals of the EIR process. (Anderson, supra, 130 Cal.App.4th at p. 1178 .)
I. The Traffic Issues [*]
Background and Contentions
Traffic impacts pose a major issue for the Project. And Oroville Dam Blvd. (which is also State Route 162 in the City) comprises a large part of that issue.
Plaintiffs contend the City failed to adopt feasible mitigation for the Project’s contribution to Year 2030 cumulative traffic impacts to eight intersections on Oroville Dam Blvd. because (1) the law and (2) substantial evidence, do not support the City’s finding that fair share fee-based mitigation is infeasible to reduce the Project’s impact to less than significant. We agree in a peripheral way with the first point and disagree as to the second.
The revised traffic section in the PRDEIR concluded, among other things, that these eight intersections along Oroville Dam Blvd. would operate at unacceptable levels of service in 2030 due to cumulative traffic impacts. The PRDEIR’s traffic analysis estimated the Project’s percentage contribution to these Year 2030 impacts at 5 and 6 percent for seven of the intersections, and 11 percent for the remaining intersection.
In mitigating these Year 2030 cumulative traffic impacts, the City imposed “Mitigation Measure TRANS-2a” (MM TRANS-2a) on the Project, which requires that: “Prior to issuance of building permits, [Wal-Mart] shall pay all transportation-related fees to [the City] in accordance with [the City’s] latest adopted fee schedule.”
The City explained MM TRANS-2a, as applied to the eight Oroville Dam Blvd. intersections at issue, as follows: “[MM TRANS-2a] requires [Wal-Mart] to pay all transportation-related fees, which constitutes the Project’s fair share [toward mitigating the Year 2030 cumulative traffic impacts]. However, at the time of the [PRDEIR], the necessary improvements [on Oroville Dam Blvd.] were not identified in the City’s Traffic Capital Improvement Program [(Traffic Program)]. As such, there is no existing mechanism in place for [Wal-Mart] to contribute its fair share, ... render[ing] [these improvements infeasible] and the residual significance of this impact significant and unavoidable.” “[MM TRANS-2a] requires [Wal-Mart] to provide fair share [mitigation] fees for improvements to these intersections [on Oroville Dam Blvd.] that would improve [Year 2030] operations to acceptable levels. It is only because there is uncertainty about whether all of these improvements can be implemented [per the Traffic Program, which is currently being updated, ] that [MM TRANS-2a] cannot be deemed to fully mitigate the impact to a level of [less than] significant.” (Furthermore, the PRDEIR noted, and the City recognized, that several of the Oroville Dam Blvd. improvements require widening the roadway to three lanes in each direction, which is, additionally, not a feasible improvement.)
The record shows that, when the City approved the EIR and the Project on December 14, 2010, the Traffic Program update was expected to be completed by March 2011, and the transportation-related fee schedule was being updated along with the Traffic Program update.
The City responded to a concern in the final EIR about MM TRANS-2a’s implementation as follows: “If the Project’s building permits are issued prior to the City updating its fee program per the update it is currently undertaking of the [Traffic Program], the Project would still pay fees.... Some of the improvements required as a result of cumulative impacts are not included in the current [Traffic Program], however, and therefore no money would be collected towards those improvements. [¶]... [¶]... [T]he City anticipates adopting the updated [Traffic Program] well before the Project could obtain its building permits. Therefore, it is reasonable to assume that the Project will pay fees towards the improvements identified in the EIR as currently being considered for inclusion in the [Traffic Program].”
1. Legal infeasibility.
“A public agency must mitigate or avoid the significant environmental effects of a project that it carries out or approves if it is feasible to do so.” (Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 937 (Tracy First).) “CEQA requires that feasible mitigation measures actually be implemented as a condition of development, and not merely be adopted and then neglected or disregarded.” (Anderson, supra, 130 Cal.App.4th at pp. 1186-1187.)
A fair share fee contribution by a single project to a mitigation fund addressing cumulative impacts from multiple projects (which include the single project) constitutes mitigation of the single project’s impact to less than significant if the fair share fee is (1) at least “roughly proportional” to the effects of the single project, and (2) part of a reasonable, enforceable plan or program that is sufficiently tied to the actual mitigation of the cumulative impacts at issue. (City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 361-362 (City of Marina); Anderson, supra, 130 Cal.App.4th at pp. 1187-1189; Tracy First, supra, 177 Cal.App.4th at p. 937.)
Here, the City could not legally conclude that MM TRANS-2a would actually mitigate the Project’s contribution to Year 2030 cumulative traffic impacts (for the eight intersections of Oroville Dam Blvd. at issue) to less than significant based on a fair share mitigation fee. This is because, at the time the City approved the EIR and the Project, the City’s updated Traffic Program specifying future traffic improvements had not yet been completed and adopted.
Instead, under MM TRANS-2a, the City required Wal-Mart, prior to the issuance of building permits, to “pay all transportation-related fees to [the City] in accordance with the latest adopted fee schedule.” This fee schedule was being updated along with the Traffic Program update. In recognition of this, the PRDEIR stated that if improvements to the eight intersections of Oroville Dam Blvd. at issue “are included in the [Traffic Program], payment of fees in accordance with [MM TRANS-2a] would satisfy [Wal-Mart’s fair share] obligation.”
Thus, the City, as a matter of determining the legal feasibility of mitigation measures for the eight Oroville Dam Blvd. intersections at issue, did what it could in approving the EIR and the Project in the absence of an enforceable mitigation plan or program at that point. In this absence, however, the City, in MM TRANS-2a, properly conditioned the issuance of building permits to Wal-Mart on Wal-Mart’s payment of all transportation-related fees to the City in accordance with the latest adopted fee schedule. As this court observed in Tracy First, “[m]itigation measures adopted by [an] agency must be fully enforceable. ‘A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures....’ ([§ 21081.6, subd. (b); CEQA Guidelines, § 15126.4, subd. (a)(2)].)” (Tracy First, supra, 177 Cal.App.4th at p. 937.)
However, in Wal-Mart’s respondent’s brief on appeal (a brief the City joins in full), Wal-Mart problematically interprets MM TRANS-2a as providing that “if the City amends it[s] [Traffic Program] before the City issues building permits to Wal-Mart, Wal-Mart will have to pay its share of improvements included in that program.” (Italics added.) One corollary to this interpretation is that if the City does not so amend, Wal-Mart will not have to pay its share of improvements in the Traffic Program. Given that the transportation-related fee schedule is being updated along with the Traffic Program update, we think it necessary to confirm that the issuance of building permits is a provision which ensures that Wal-Mart, as required by MM TRANS-2a, pays “all transportation-related fees to [the City] in accordance with the latest adopted fee schedule, ” and not a ...