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Friends of Oroville v. City of Oroville

California Court of Appeals, Third District, Butte

September 18, 2013

FRIENDS OF OROVILLE et al., Plaintiffs and Appellants,
v.
CITY OF OROVILLE et al., Defendants and Respondents WAL-MART STORES, INC., Real Party in Interest and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION [*]

APPEAL from a judgment of the Superior Court of Butte County No. 152682, Stephen E. Benson, Judge.

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.

ORDER MODIFYING AND CERTIFYING OPINION

FOR ADDITIONAL PARTIAL PUBLICATION

THE COURT:[*]

It is ordered that the opinion certified for partial publication, filed herein on August 19, 2013, be modified to also include publication of parts II.A. and II.C. of the Discussion.

1. The asterisked footnote at page 1 of the opinion is modified to include parts “II.A.” and “II.C.” of the Discussion and will now read as follows:

2. Previously unpublished parts II.A. and II.C. remain unchanged from the opinion filed on August 19, 2013, and read as follows:

II. Analysis of Hydrological Impacts [*]

Plaintiffs raise four contentions on this subject.

A. Baseline Description of Hydrological Conditions

Plaintiffs have two concerns here.

The first concern is with “Mitigation Measure HYD-4” (MM HYD-4), which specifies that, prior to issuance of grading permits for the Project, Wal-Mart shall retain a qualified civil engineer to prepare and submit a drainage plan for City’s approval that identifies onsite drainage facilities to ensure that runoff from the Project site is released at a rate no greater than that of the “pre-development condition.”

Plaintiffs claim the EIR fails to analyze existing water percolation rates through the highly permeable mining tailings on the Project site and, without that information, it cannot be determined whether there is a feasible drainage solution that will ensure the runoff rate is no greater than pre-development conditions, as MM HYD-4 requires.

The EIR, however, included a geotechnical investigation. This investigation analyzed the surface and subsurface composition of the Project site, including the mining tailings thereon, and performed three distinct tests of how those conditions currently affect water percolation. Furthermore, baseline information about the percolation rates of the mining tailings on the Project site will be part of a required study for the MM HYD-4 drainage plan. Finally, the MM HYD-4 standard of no greater runoff rate is designed to avoid a project-related increase in flooding of adjacent properties during storm events, a standard ascertainable from pre-development flood information.

Plaintiffs’ second concern centers on “Mitigation Measure HYD-2a” (MM HYD-2a). That mitigation measure specifies that prior to issuance of building permits for the Project, Wal-Mart shall submit a stormwater management plan for the City’s approval that identifies pollution prevention measures to prevent polluted runoff from leaving the Project site, that accounts for the Project’s net increase of nearly 21 acres of impervious surface area, and that ensures that water quality in downstream water bodies is not degraded. MM HYD-2a specifies 11 pollution prevention measures that this plan must include, but is not limited to; in a response to comments on stormwater quality, the EIR notes that these prevention measures have been “widely employed and... demonstrated to be effective means at controlling and preventing pollution from entering downstream waterways.”

Plaintiffs claim the EIR fails to include information about the baseline water quality conditions at the Project site and the receiving water body, the nearby Feather River.

As for existing water quality, the EIR states, however, that “[t]here are no water bodies in [the City] area listed on the 2006 [federal] Clean Water Act[’s]... list of impaired water bodies. As such, no [pollution-remedial] Total Maximum Daily Load requirements are in effect for any surface water bodies in the Oroville area.” Furthermore, as with percolation rates, existing runoff from the Project site will be part of the study for the MM HYD-4 drainage plan.

We conclude that the EIR’s description of the challenged baseline hydrological information is adequate.

C. Deferral of Mitigation

Plaintiffs contend that MM HYD-2a (i.e., the stormwater management/pollution runoff plan) and MM HYD-4 (i.e., the drainage plan) improperly defer formulation of specific mitigation strategies until after the Project’s approval. We disagree.

Deferral of mitigation specifics is permissible where the relevant agency commits itself to mitigation and articulates specific performance criteria or standards that must be met for the project to proceed. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793-794; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275-1276.) The two challenged mitigation measures comply with this principle.

MM HYD-2a states that prior to the issuance of building permits Wal-Mart must submit for the City’s approval a stormwater management plan that contains, but is not limited to, 11 specified pollution prevention measures to prevent polluted runoff from leaving the Project’s site. These specified measures, the EIR notes, have been “widely employed and... demonstrated to be effective means at controlling and preventing pollution from entering downstream waterways, ” and implement “Best Management Practices” in controlling stormwater runoff quality.

MM HYD-4 provides that prior to the issuance of grading permits Wal-Mart shall retain a qualified civil engineer to prepare and submit for the City’s approval a drainage plan “that will ensure that runoff from the [P]roject site is released at a rate no greater than that of the pre-development condition.” This standard seeks to avoid any project-related increase in flooding of adjacent properties during storm events, a standard, as noted, ascertainable from pre-development flood information.

There is no change in judgment.

The opinion in the above entitled matter, filed on August 19, 2013, was certified for partial publication of part III.A. For good cause, it now appears that parts II.A. and II.C. of the Discussion should also be certified for publication in the Official Reports, and it is so ordered.

BUTZ, Acting P. J.

In this action under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), [1] 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.

DISCUSSION

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. ...


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