[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Fresno County Nos. 11CECG00726, 11CECG00706, 11CECG00709. Rosendo Pena, Jr., Judge.
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Law Office of Sara Hedgpeth-Harris and Sara Hedgpeth-Harris for Plaintiffs and Appellants.
Kevin B. Briggs, County Counsel, and Bruce B. Johnson, Deputy County Counsel, for Defendants and Respondents.
Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris for Real Party in Interest.
In February 2011, the County of Fresno (County) approved the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north-central Fresno County (the Project). The Project is located on 942 acres of unirrigated grazing land adjacent to the unincorporated community of Friant, below Friant Dam and Millerton Lake, near the San Joaquin River.
This appeal argues that (1) the Project was inconsistent with land use and traffic policies in County’s general plan and (2) the environmental impact report (EIR) for the Project failed to comply with the California Environmental Quality Act (CEQA). The CEQA claims challenge the adequacy of the EIR’s discussion of certain issues involving (1) treated effluent from the proposed wastewater treatment facilities and (2) air quality impacts.
As to the claims of general plan inconsistency, we conclude that the Project is not inconsistent with the land use element, since the agricultural use designation was properly changed by amendment, thereby avoiding an inconsistency, and the issues regarding traffic policy TR-A.2 were not exhausted during the administrative process.
We conclude the CEQA claims involving wastewater disposal lack merit because the amount and location of wastewater use and disposal and the hydrogeology of the site ultimately chosen for the wastewater treatment plant were addressed in sufficient detail during the environmental review process.
As to the CEQA claims involving air quality, we conclude that (1) the EIR was inadequate because it failed to include an analysis that correlated the project’s emission of air pollutants to its impact on human health; (2) the mitigation measures for the project’s long-term air quality impacts violate CEQA because they are vague, unenforceable and lack specific performance criteria; and (3) the statement that the air quality mitigation provisions will
substantially reduce air quality impacts is unexplained and unsupported. These defects must be cured by the preparation of a revised EIR.
We therefore reverse the judgment.
Plaintiffs Sierra Club, League of Women Voters of Fresno, and Revive the San Joaquin (collectively, plaintiffs) alleged that they are nonprofit organizations concerned with protecting the environment, public participation in the political process, and protection and restoration of the San Joaquin River, respectively.
County is the local governmental entity that acted as the lead agency in the preparation of the EIR for the Project and, through its board of supervisors, issued approvals necessary for the Project. Real party in interest Friant Ranch, L.P. is the Project proponent. This opinion refers to County and Friant Ranch, L.P. collectively as “defendants.”
The Project proposes the development of the Central Valley’s first master planned retirement community for “active adults” (age 55 and older) on a 942-acre site in north central Fresno County, just south of the San Joaquin River. The development includes single- and multi-family residential units that are age restricted, some residential units that are not age restricted, a commercial village center, a recreation center, trails, open space, and parks and parkways.
County approved Alternative 3 of the Project, which includes the construction of approximately 2, 500 residential units and 250, 000 square feet of commercial space on 482 acres and the dedication of 460 acres to open space. The Project’s construction is divided into five phases with an estimated 10-year build-out.
The residential and commercial growth envisioned by the Project will require additional wastewater treatment capacity. The hydrogeology of the site proposed for the new wastewater treatment facilities, the concerns about
the amount and location of the storage, and the application of the facilities’ treated effluent, are the subjects of the CEQA claims raised in this appeal.
The initial proposal for the Project placed new wastewater treatment facilities adjacent to a small existing plant in the Friant Ranch Specific Plan area and indicated that treated effluent might be discharged from the new plant into the San Joaquin River during winter months, when demand for irrigation was low. County rejected this site and found that the alternative site for the new wastewater treatment and disposal facilities on land known as the “Beck Property” was environmentally superior. The Beck Property is approximately 145 acres located west of Friant Road and south and east of Lost Lake Park. The site was used by a gravel extraction operation and presently contains highly disturbed agricultural land and an aggregate mining quarry. The quarry will be used to create an effluent pond that is capable of storing treated effluent year-round.
In October 2007, County distributed a notice of preparation regarding the draft EIR for the Project. Two years later, the draft EIR was released. The 45-day period for the public to submit comments on the draft EIR and the Project ended on December 15, 2009. The final EIR, which included the comments presented and County’s responses, was released in August 2010.
On February 1, 2011, County’s board of supervisors approved the Project by adopting resolution No. 11-031, which certified the final EIR and approved General Plan Amendment No. 511, which updated the Friant Community Plan (a component of the Fresno County General Plan) and authorized the proposed Friant Ranch Specific Plan. The update to the Friant Community Plan expanded the area covered from the existing unincorporated community of Friant to include the proposed development—that is, the area covered by the Friant Ranch Specific Plan. One controversy generated by the board of supervisors’ approval of the Project and general plan amendment relates to the redesignation of land in the Project area from agricultural use to commercial, residential, public facility, and open space uses and whether that redesignation was consistent with the general plan’s policy of preserving valuable agricultural land. General Plan Amendment No. 511 did not change any of the land use goals and policies set forth in the general plan.
Other County action required for the Project includes amending the Friant Redevelopment Plan, changing zoning, and entering into a development
agreement for the project. The final EIR states that County will consider issuing conditional use permits for the wastewater treatment plant and related use of treated wastewater for irrigation of Lost Lake Park and other disposal sites.
This appeal concerns primarily the approvals issued by County because County (1) acted as the lead agency for the CEQA review and (2) approved aspects of the Project that plaintiffs contend are inconsistent with County’s general plan. Nevertheless, the Project cannot be completed without approvals from other state and federal agencies.
One such state agency involved in approving the Project is the Central Valley Regional Water Quality Control Board. The final EIR states that the Project will require the Water Quality Control Board to adopt waste discharge and water reclamation requirements for land disposal of treated effluent, adopt a National Pollutant Discharge Elimination System (NPDES) permit for any discharge of treated effluent to the San Joaquin River, issue a Clean Water Act section 401 certification (33 U.S.C. § 1341), and take other action.
In addition, the San Joaquin Valley Air Pollution Control District (Air District) might review certain aspects of the Project. The final EIR states that the proposed Project might require the Air District to (a) process an air permit application for the wastewater treatment plant, (b) process an air impact assessment, (c) issue a dust control permit, and (d) take appropriate action to ensure compliance with Air District’s Rule 9510.
Contents of EIR
The draft EIR states that the Friant Ranch Specific Plan area was being used for cattle grazing and the Project did not propose to convert to nonagricultural uses any (1) prime farmland, (2) farmland of statewide importance, or (3) land designated unique farmland. Also, no land within the Project area is subject to a Williamson Act (Gov. Code, § 51200 et seq.) contract or a Farmland Security Zone contract. Based on these facts, the draft EIR stated that the growth proposed by the Project was being directed to “an area that does not include valuable agricultural land.” Accordingly, the draft EIR concluded that the Project was consistent with County’s land use policies designed to protect agricultural resources in Fresno County.
The majority of the land in the Friant Ranch Specific Plan area was designated “Agriculture” by County’s general plan. Similarly, most of the
land was zoned “Exclusive Agriculture (AE-20 and AE-40).” The remainder was zoned for trailer parks (about 35 acres), commercial uses (about 4 acres) or residential (about 2.5 acres). As a result of County’s approval of the Project, the land previously designated for agriculture was redesignated for commercial, residential, public facility and open space use.
The EIR discusses the disposal of effluent resulting from the treatment of wastewater at the proposed wastewater treatment plant. The discussion of wastewater issues relevant to this appeal is described later in this opinion. (See part III.A, post.) Similarly, matters relevant to plaintiffs’ claims that the EIR’s analysis of air quality impacts was inadequate and the mitigation measures are flawed are also set forth below. (See part IV.A, post.)
Following the Board of Supervisor’s approval of the Project, County filed a notice of determination for the Project on February 3, 2011, which triggered the 30-day statute of limitations for bringing a CEQA claim. (§ 21167, subd. (c); Guidelines, § 15112, subd. (c)(1).)
Plaintiffs’ petition for writ of mandate and complaint challenges County’s approval of the Project and certification of the final EIR and alleged violations of CEQA and the Planning and Zoning Law (Gov. Code. § 65000 et seq.) requirement that land use decisions be consistent with the applicable general plan.
After extensive briefing by the parties, a hearing on the merits was held on September 21, 2012. On December 14, 2012, the trial court delivered its ruling from the bench, denying all of the claims and entering judgment in favor of defendants.
In February 2013, plaintiffs filed a notice of appeal from the judgment entered against them.
I. PROJECT’S CONSISTENCY WITH GENERAL PLAN
California’s Planning and Zoning Law requires County’s specific plans, zoning ordinances, subdivision map approvals and other land use or
development actions to be consistent with County’s general plan. (Gov. Code, §§ 65454 [specific plans], 65860 [zoning ordinances] & 66473.5 [subdivision maps].)
A. Standard of Review
A local governing body’s determination that a project is consistent with a general plan is subject to judicial review under the abuse of discretion standard. (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338 [74 Cal.Rptr.2d 1].) An abuse of discretion is established if the governing body did not proceed as required by law, made a determination that was not supported by findings, or made findings of fact that were not supported by substantial evidence. (Ibid.) A finding of fact related to general plan consistency is not supported by substantial evidence if, based on the evidence before the local governing body, a reasonable person could not have reached the same conclusion. (Ibid.)
Defendants argue that the deferential arbitrary and capricious standard of review should be applied to County’s determination that the project was consistent with the general plan.
We believe that the arbitrary and capricious standard and the abuse of discretion standard are the same in substance. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782, fn. 3 [32 Cal.Rptr.3d 177]; cf. Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579] [the abuse of discretion standard of review, in the context of a motion to recuse a prosecutor, uses an arbitrary and capricious test for the application of the law to the facts].) Because this court used the abuse of discretion standard in Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 706 [58 Cal.Rptr.3d 102], we will proceed in this appeal using that formulation of the standard of review.
When the particular issue presented on appeal involves the interpretation of an ambiguous provision of a general plan, appellate courts defer to the local government’s resolution of that ambiguity so long as the interpretation adopted is reasonable. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142 [104 Cal.Rptr.2d 326].) In other words, the local government may adopt any reasonable interpretation; it is not required to select the most likely interpretation out of the range of possible reasonable interpretations.
Lastly, appellate courts review the local government’s consistency determination, not the decision of the trial court. Consequently, our review is
independent of the trial court’s decision. (See California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 637 [91 Cal.Rptr.3d 571) [question on appeal is same question presented to trial court].)
B. General Plan Land Use Policy LU-A.1
The agriculture and land use element of County’s general plan states that its goal regarding agriculture is to promote the long-term conservation of productive and potentially productive agricultural lands and to accommodate agriculturally related activities and support services. To achieve this goal, the general plan lists 21 policies. The first is land use policy LU-A.1 (County Ag Use Policy), which states:
The County shall maintain agriculturally-designated areas for agriculture use and shall direct urban growth away from valuable agricultural lands to cities, unincorporated communities, and other areas planned for such development where public facilities and infrastructure are available.”
The parties disagree about the meaning of the County Ag Use Policy and whether County violated the policy when it approved the project. We conclude that County interpreted the policy in a reasonable manner when it determined agricultural land use designations could be changed by amendment and a project is consistent with the County Ag Use Policy if some public facilities and infrastructure are available in the Project area.
1. Plaintiffs’ Contentions
Plaintiffs’ argument that the Project is inconsistent with the County Ag Use Policy begins with the contention that the policy is fundamental, mandatory and unambiguous. Plaintiffs interpret the mandatory language of the policy to mean that County is prohibited from changing the designation of land that has been designated for agriculture. Based on this interpretation, plaintiffs conclude that the project is inconsistent with the County Ag Use Policy because the Project included the redesignation and rezoning of an agricultural area to allow for intensive urban use.
Plaintiffs also contend that the Project is inconsistent with the County Ag Use Policy because the Project is located in an area where public facilities and infrastructure are not available.
2. Defendants’ Contentions
As to the interpretation of the County Ag Use Policy, defendants contend it does not prohibit changes in land use designations that are accomplished by
amendments to the general plan. Defendants support this contention by arguing it is unreasonable to interpret the policy to mean that land designated “Agriculture” must retain that designation in perpetuity.
Defendants also contend that the project is consistent with the County Ag Use Policy because (1) it protects valuable agricultural land by directing growth to less productive grazing land and (2) it directs growth to the existing community of Friant and ensures appropriate improvement and expansion of public facilities there.
C. Changing Land Use Designations
The first disagreement over the proper interpretation of the County Ag Use Policy centers on the phrase “shall maintain agriculturally-designated areas for agricultural use.…” This phrase is not interpreted in isolation. Consequently, we will discuss other provisions in the general plan that may shed light on its meaning.
1. Other Provisions in General Plan
Plaintiffs support their view that County is prohibited from redesignating agriculturally designated areas to other uses by referring to the general plan’s (1) definition of “policy” as a “[s]pecific statement guiding action and implying clear commitment” and (2) statement that the “use of the word[s] ‘shall’ in a policy is an unequivocal directive.…” Because the general plan does not define the word “maintain, ” plaintiffs cite a dictionary that defines “maintain” to mean (1) to cause something to exist or continue without changing or (2) to keep in an existing state.
Defendants argue that the “shall maintain” language in the County Ag Use Policy does not prohibit general plan amendments that change the designation of land that had been designated “Agriculture.” Defendants refer to the provision in the general plan that authorizes amendments and County’s history of adopting amendments that change land use designation. Defendants also quote three other agriculture policies (LU-H.8, LU-F.39 and LU-A.14) as evidence that the general plan recognized situations could arise where the redesignation of agricultural land is necessary.
Amendments to the general plan are addressed in the introduction under the heading “REVISING AND AMENDING THE GENERAL PLAN.” The first paragraph under the heading states that the general plan “must be flexible enough to respond to changing conditions and at the same time specific enough to provide predictability and consistency in guiding day-to-day land use and development decisions. Over the years, conditions and community
needs change and new opportunities arise; the plan needs to keep up with these changes and new opportunities.” After mentioning two types of periodic review of the general plan, the paragraph concludes:
“From time to time, the County will be asked to consider proposals for specific amendments to the plan. The County will initiate some of these proposals itself, but most will be initiated by private property owners and developers. Most general plan amendments involve changes in land use designations for individual parcels." (Italics added.)
2. Analysis of General Plan’s Provisions
The starting point for our examination of the meaning of the general plan is similar to the analysis used for statutes, contracts and other instruments. The first question is whether the provision in question is ambiguous. (E.g., Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 [6 Cal.Rptr.2d 554] [the existence of contractual ambiguity is a threshold question to the determination of meaning]; Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1494-1496 [35 Cal.Rptr.3d 596] [initial examination of statute concerns whether statute is ambiguous].) Generally, whether language is ambiguous (i.e., susceptible to more than one reasonable interpretation) presents a question of law. (Winet v. Price, supra, at p. 1165.)
Where a provision of the general plan is ambiguous, the next and final question is whether the local governing body adopted a reasonable interpretation when it resolved that ambiguity. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244 [242 Cal.Rptr. 37] [addressing whether city council’s interpretation of ambiguous term in general plan was arbitrary, capricious or entirely lacking in evidentiary support].)
We conclude that the statement in the County Ag Use Policy that “County shall maintain agriculturally-designated areas for agricultural use” is ambiguous as to whether County may amend the general plan and change the designation of land that had been designated “Agriculture.” It is possible to interpret this language to mean that County may not ever change the agricultural designations made by the general plan. Alternatively, it is possible to interpret the language to mean, simply, that County shall allow only agriculture uses on land that is designated “Agriculture.” Under this latter interpretation, the language does not address the subject of changing land use designations—it deals only with the designation that exists at the time in question.
The general plan’s statement that “[m]ost general plan amendments involve changes in land use designations for individual parcels” clearly indicates that land use designations are not locked in forever. This reference to “land use
designations” is broad and, because there is no limiting language, it is reasonable to interpret it as covering all types of land use designations, including the designation “Agriculture.” Therefore, General Plan Amendment No. 511, which changed the land use designation of the parcels in the Project area, is a type of general plan amendment authorized by the express language of the general plan.
In summary, County’s interpretation of the County Ag Use Policy and the other provision of the general plan to allow general plan amendments that change a land use designation from “Agriculture” to another use was one of the interpretations to which the general plan was reasonably susceptible. Therefore, County did not abuse its discretion in adopting that interpretation.
D. Available Public Facilities and Infrastructure
The second dispute over the proper interpretation and application of the County Ag Use Policy relates to the provision that County “shall direct urban growth [to areas] where public facilities and infrastructure are available.” Plaintiffs cite the EIR’s statement that the project is consistent with the County Ag Use Policy “in that growth is being directed in an area that does not include valuable agricultural land and where public facilities and infrastructure are available or can be expanded.” (Italics added.) In plaintiffs’ view, the italicized language does not appear in the policy itself and demonstrates that the project is inconsistent with the wording of the County Ag Use Policy.
Defendants argue that plaintiffs’ interpretation of that policy is not reasonable because it effectively limits growth to areas where the necessary public facilities and infrastructure are in existence and excludes growth in areas where only some public facilities and infrastructure are available.
We conclude that County reasonably interpreted the County Ag Use Policy to mean that County could direct growth to an area where an expansion of existing facilities and the development of new facilities was required. County’s interpretation is supported by policy PF-A.1, which provides: “The County shall ensure through the development review process that public facilities and services will be developed, operational, and available to serve new development. The County shall not approve new development where existing facilities are inadequate unless the applicant can demonstrate that all necessary public facilities will be installed or adequately financed and maintained (through fees or other means).” (Italics added.)
The foregoing policy clearly indicates that new development can be approved in an area where the public facilities need to be expanded. Therefore, County did not abuse its discretion when it interpreted the County Ag Use Policy to mean that growth was allowed in areas that needed to expand public facilities and infrastructure.
E. Traffic Policy Addressing Levels of Service
1. General Plan Provisions
The general plan’s “Transportation and Circulation Element” addresses various modes of transportation and their related facilities, including streets and highways. Goal TR-A is to “plan and provide a unified, coordinated, and cost-efficient countywide street and highway system that ensures the safe, orderly, and efficient movement of people and goods.” Policy TR-A.1 addresses standards used in the planning and construction of streets and roads. Policy TR-A.2 (LOS Policy) provides in full:
“The County shall plan and design its roadway system in a manner that strives to meet Level of Service (LOS) D on urban roadways within the spheres of influence of the cities of Fresno and Clovis and LOS C on all other roadways in the county.
“Roadway improvements to increase capacity and maintain LOS standards should be planned and programmed based on consideration of the total overall needs of the roadway system, recognizing the priority of maintenance, rehabilitation, and operation of the existing road system.
“The County may, in programming capacity-increasing projects, allow exceptions to the level of service standards in this policy where it finds that the improvements or other measures required to achieve the LOS policy are unacceptable based on established criteria. In addition to consideration of the total overall needs of the roadway system, the County shall consider the following factors:
“a. The right-of-way needs and the physical impacts on surrounding properties;
“b. Construction and right-of-way acquisition costs;
“c. The number of hours that the roadway would operate at conditions below the standard;
“d. The ability of the required improvement to significantly reduce delay and improve traffic operations; and
“e. Environmental impacts upon which the County may base findings to allow an exceedance of the standards.
“In no case should the County plan for worse than LOS D on rural County roadways, worse than LOS E on urban roadways within the spheres of influence of the cities of Fresno and Clovis, or in cooperation with Caltrans and the Council of Fresno County Governments, plan for worse than LOS E on State highways in the county.” (Italics added.)
The first paragraph of the LOS Policy uses the word “shall” and the last paragraph uses the word “should.” The general plan contrasts the meaning of “should” with the unequivocal directive “shall” by stating that “the word ‘should’ is a less rigid directive that ...