California Court of Appeals, First District, First Division
[As Modified on June 25, 2014]
Solano County Super. Ct. No. FCS039863
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Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, and Christiana Tiedemann, Deputy Attorney General, for Defendants and Appellants.
Somach Simmons & Dunn, Richard S. Deitchman and Nicholas A. Jacobs for Suisun Resource Conservation District as Amicus Curiae on behalf of Defendants and Appellants.
Astor & Kingsland and John Kelly Astor for California Refuse Recycling Council as Amicus Curiae on behalf of Defendants and Appellants.
Robert Paul for Napa-Vallejo Waste Management Authority as Amicus Curiae on behalf of Defendants and Appellants.
Dennis Bunting, County Counsel, Azniv Darbinian, Assistant County Counsel, and James W. Laughlin, Deputy County Counsel, for the County of Solano as Amicus Curiae on behalf of Defendants and Appellants.
The Smith Firm and Kelly T. Smith for Plaintiffs and Respondents.
Beveridge & Diamond, Lily Chinn, Gary J. Smith, Zachary M. Norris, James B. Slaughter; Law Offices of Scott W. Gordon and Scott W. Gordon for Real Party in Interest.
Solano County and the San Francisco Bay Conservation and Development Commission (Commission) approved permits to allow real party in interest Waste Connections, Inc. to expand the Potrero Hills Landfill, which is situated within the secondary management area of the Suisun Marsh. The permits were issued after years of environmental review and litigation under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 2100 et seq.).
In the instant writ proceeding, petitioners contend the permit
approvals violate the Solano County local protection program and, specifically,
a county ordinance, because the expansion will entail some rechanneling of an
ephemeral watercourse called Spring Branch. Under that ordinance, modification of a marsh watercourse is allowed only if no “reasonable alternative” exists. Petitioners claim the Commission could have, and should have, approved a smaller expansion that would not impinge on the intermittent watercourse. The trial court agreed, ruling no substantial evidence supports the Commission’s determination that a smaller alternative is not economically reasonable. The Commission and real party in interest have appealed. We reverse.
Factual and Procedural Background
The Potrero Hills Landfill is located in the upland, grassland area—or “secondary management area”—of the Suisun Marsh. The landfill site is currently 320 acres in size. The expansion, as proposed in 2003, would allow an increase in fill height and also add 260 acres of adjoining property to the site—extending the life of the landfill another 35 years. The proposed expansion would also have a number of environmental impacts, including impinging on and requiring the alteration of a portion of an intermittent watercourse, Spring Branch. Decades ago, relocation of another portion of Spring Branch was deemed consistent with applicable laws, and permitted in connection with the landfill.
County’s Approval of Permits
In early 2003, the county gave notice it would prepare an environmental impact report (EIR) for the proposed landfill expansion. The draft EIR, published later that year, concluded relocating a portion of the Spring Branch watercourse would not have a significant environmental impact if certain mitigation measures were adopted. In part, this conclusion was based on a finding the watercourse was then “devoid of riparian vegetation.” The draft
EIR also concluded the project was consistent with the Suisun Marsh Preservation Act of 1977 (Pub. Resources Code, § 29000 et seq.) and the Solano County Local Protection
The draft EIR evaluated one alternative to the proposed expansion project: increasing the height of the landfill, without increasing the footprint. This alternative was rejected because it would still require excavation of the adjacent land, would not appreciably reduce environmental impacts, and would, with a significantly reduced fill capacity, undermine the project goals. Offsite alternatives were not considered in detail, since any new site was likely to raise issues similar to those facing the proposed expansion.
Two years later, in September 2005, after receiving and responding to comments, the county certified a final EIR and issued a use permit and marsh development permit for the proposed expansion (Nos. U-88-33 and MD-88-09).
Under the Suisun Marsh Preservation Act of 1977, a decision by a local government to issue a marsh development permit can be challenged in two ways. One provides for tiered agency, and then court review. The challenger first appeals to the Commission, the body with ultimate responsibility for implementing the Act. (§§ 29106, 29504, subd. (a).) If the challenger remains aggrieved after the Commission’s decision on appeal, the challenger “may seek judicial review... by filing a petition for a writ of mandate in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure within 60 days after such decision or action has become final.” (§ 29602.) The other avenue allows for direct review by the courts. The challenger may seek “judicial review of any decision made or any action taken pursuant to this division by a local government that is implementing the certified local protection program, or any component thereof, whether or not such decision ...