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South County Citizens For Smart Growth v. County of Nevada

California Court of Appeals, Third District, Nevada

October 8, 2013

SOUTH COUNTY CITIZENS FOR SMART GROWTH, Plaintiff and Appellant,
v.
COUNTY OF NEVADA et al., Defendants and Respondents KKP LAKE OF THE PINES, LLC, Real Party in Interest and Respondent.

Certified for publication 11/6/13

APPEAL from a judgment of the Superior Court of Nevada County No. 75402, Robert Tamietti, Judge.

Lippe Gaffney Wagner, Keith G. Wagner, Brian Gaffney, and Erin C. Ganahl for Plaintiff and Appellant.

Alison Barratt-Green, Interim County Counsel, for Respondents and Defendants County of Nevada and Nevada County Board of Supervisors.

Remy, Thomas, Moose and Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris for Real Party in Interest and Respondent KKP Lake of the Pines, LCC.

MAURO, J.

Petitioner South County Citizens for Smart Growth (Smart Growth) appeals from the trial court’s denial of its petition for writ of mandate in which Smart Growth alleged that the County of Nevada (the County) violated various provisions of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in approving a commercial real estate project in Nevada County.[1] Smart Growth contends we must reverse the judgment because (1) the County failed to prepare and recirculate a revised draft EIR adding an alternative project proposal recommended by staff for the Nevada County Planning Commission (the staff alternative); (2) the County failed to make any findings regarding the feasibility of the staff alternative; and (3) the County relied on future traffic improvements that have not been approved yet in order to declare the revised project’s traffic impacts less than significant.

We conclude (1) the County did nor err in failing to prepare and recirculate a revised draft EIR adding the staff alternative, because the staff alternative was not “significant new information” within the meaning of the CEQA Guidelines; (2) the County was not required to make findings regarding the feasibility of the staff alternative because the alternative was proffered after preparation of the final EIR and adequate alternatives were discussed in the EIR; and (3) the County did not rely on future traffic improvements, but instead relied on the current actual use of the road in question, rather than its current traffic designation.

We will affirm the judgment.

BACKGROUND

This appeal arises from the County’s decision to approve the Higgins Marketplace Project (the project) in southwestern Nevada County. Real Party in Interest Katz Kirkpatrick Properties (KKP) submitted the application for the project to the County in 2005. The 20.07 acre site consisted of one parcel owned by the Tintle family, but KKP had an option to purchase the northern portion of the site. The original proposal involved subdivision of the site into 10 parcels for commercial, light industrial, and office uses. On five of the parcels (approximately 10.58 acres), the proposal called for a 59, 800 square-foot retail store (expected to be a Bel-Air Market), two retail buildings (one 13, 200 square feet and the other 6, 500 square feet), two 3, 500 square-foot drive-through fast-food restaurants, and 482 parking stalls. No development was proposed for four other parcels (approximately 5.07 acres), which would continue to be owned by the Tintle family, although the proposal allowed for future development of approximately 42, 000 square feet of light industrial and office spaces. The last parcel, which was around 3.26 acres, was designated to retain existing wetlands and to provide a 25-foot buffer between the developed parcels and the onsite wetlands. The proposal also included a proposed habitat management plan, as required by the County Code because the wetland buffer was less than 100 feet.

In November 2007, the County published a draft environmental impact report (draft EIR) analyzing the project’s potential significant impacts on the environment, and identifying potentially feasible mitigation measures and alternatives that would minimize or avoid potential significant impacts. The draft EIR identified two significant traffic impacts and one significant cumulative air quality impact that could not be reduced to less than significant levels even with the implementation of the mitigation measures identified in the draft EIR. All other potentially significant impacts would be reduced to less than significant levels with the implementation of mitigation measures.

In January 2008, the Nevada County Planning Commission (Planning Commission) held a public hearing to receive comments on the draft EIR. At the request of members of the public, the Planning Commission extended the public comment period. During the extended comment period, KKP submitted a letter that included a peer review of the draft EIR’s traffic analysis and a proposal to reduce the size of the Bel-Air to help reduce the project’s traffic impacts. At the request of KKP, Pitney Bowes Map Info submitted a letter updating the distribution of projected patrons to the project site, which could influence traffic patterns. The Planning Commission extended the public comment period again until February 29, 2008, to give the public the opportunity to comment on KKP’s additional submissions.

The County’s environmental consultant prepared responses to the written and oral comments received at the hearing on the draft EIR. The final EIR -- which consisted of the draft EIR, the responses to comments, and associated appendices -- was released for public review on October 30, 2008. Following release of the final EIR, but prior to the Planning Commission’s hearing on the document, four more comment letters were received, including a letter from Smart Growth’s counsel. The County’s environmental consultant prepared responses to the late comments, and the County included the late comments and the responses in an appendix to the final EIR.

On January 8, 2009, the Planning Commission held a hearing on the final EIR to consider whether to recommend that the Nevada County Board of Supervisors (the Board) (1) certify the final EIR, and (2) approve the legislative actions required for the project (including the general plan amendment and rezone). The staff report prepared for the Planning Commission hearing recommended that the Planning Commission vote to recommend that the Board approve a modified version of the project, the staff alternative, in order to address concerns over the project’s air quality and traffic impacts. The staff alternative built upon alternative 4 in the draft EIR (the “Redesign/Reduced Density” alternative), which provided for a reduction in overall retail development. The staff alternative would cap commercial property at 75, 000 square feet, have 10 acres of open space, increase the wetland buffer from 25 to 100 feet, and prohibit fast food restaurants due to their high traffic generation. The Planning Commission voted three to two to recommend that the Board approve the staff alternative, and the Planning Commission unanimously voted to recommend that the Board certify the final EIR.

Thereafter, KKP worked to address the Planning Commission’s concerns and revise the project based on the Planning Commission’s recommendations. KKP submitted two alternatives that would reduce the project’s footprint and eliminate fast food restaurants. The overall number of proposed buildings was reduced from five to four, and the total square footage was reduced from 86, 500 square feet to 75, 710 square feet. KKP’s first alternative included a 100-foot setback from the onsite wetlands, but would reduce landscaping and cause parking space conflicts with the major interior circulation routes. KKP’s second alternative included a 50-foot nondisturbance setback from the wetland area, with a 20-foot buffer zone and greater landscaping. Planning Commission staff conferred with a biological consultant concerning the setback and buffer, concluded that KKP’s second alternative was preferable, and recommended to the Planning Commission that it recommend KKP’s second alternative to the Board.

The primary differences between the staff alternative and KKP’s second alternative were that in KKP’s second alternative (1) the Tintle family property was allowed to keep its existing business park designation on 3.03 acres and the proposed office professional designation on 0.78 acres; (2) the wetland setback would be 50 feet rather than 100 feet, but an additional 20 feet was added as a buffer, making the overall reduction to the setback only 30 feet; (3) the total square footage of community commercial designations was increased from 75, 000 square feet to 75, 800 square feet; and (4) open space was reduced by approximately four acres.[2]

Consistent with the staff recommendation of KKP’s second alternative (hereafter also referenced as the revised project), the proposed tentative parcel map was modified to coincide with the new site plan, with seven parcels divided as follows: one for each building, one for the wetlands/open space parcel, and two for the Tintle property parcels, which the Tintles intended to retain after the sale to KKP. In response to objections from the Tintles, the revised project would continue to allow the future development of their parcels for commercial uses as permitted by existing zoning standards. However, development would be limited to 26, 000 square feet of building space.

On May 28, 2009, the Planning Commission held a meeting to consider (1) the details of the revised project, and (2) whether to recommend that the Board certify the final EIR. Due to a procedural error in noticing the meeting, the Planning Commission did not discuss the details of the revised project at that time. Instead, it voted five to zero that the final EIR adequately encompassed the revised project, and it recommended that the Board certify the final EIR. However, on June 11, 2009, the Planning Commission met again and discussed the details of the revised project. The Planning Commission voted to recommend that the Board approve the revised project (KKP’s second alternative) rather than the staff alternative, and that the Board approve the legislative actions associated with the revised project.

On July 7, 2009, the Board held a public hearing to consider the final EIR, and whether to approve the associated legislative actions. Smart Growth’s attorney submitted a lengthy comment letter on the final EIR at the beginning of the hearing. To allow time to consider the letter, the Board continued the meeting until mid-August. In light of the lengthy comment letter and other letters that were received, additional responses to comments were prepared and incorporated into the final EIR.

On August 18, 2009, the Board held two public hearings: one to consider the final EIR and the other to consider the legislative actions. The Board voted to certify the final EIR and approve the legislative actions.

Smart Growth timely filed a petition for writ of mandate in superior court. As relevant to the present appeal, Smart Growth asserted in a second amended petition that the County violated CEQA by (1) failing to prepare and recirculate a revised draft EIR with the staff alternative, which was a potentially feasible alternative and would have less impact on the environment than the revised project; (2) failing to make any findings or otherwise cite to substantial evidence explaining why the staff alternative should not or could not be approved; (3) asserting that traffic impacts were mitigated to “less than significant” levels by administratively redesignating an affected road as a minor arterial without any change to actual traffic conditions on the impacted road; and (4) finding that the revised ...


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