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Rominger v. County of Colusa

California Court of Appeals, Third District, Colusa

September 9, 2014

ELAINE ROMINGER et al., Plaintiffs and Appellants,
v.
COUNTY OF COLUSA et al. Defendants and Respondents ADAMS GROUP INC., Real Party in Interest and Respondent.

APPEAL from a judgment of the Superior Court of Colusa County, No. CV23899 Jeffrey A. Thompson, Judge.

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COUNSEL

Kronick, Moskovitz, Tiedemann & Girard, Jonathan P. Hobbs, Mona G. Ebrahimi and Leslie Z. Walker, for Plaintiffs and Appellants.

Stoel Rives, Timothy M. Taylor, Kristen T. Castanos and Juliet H. Cho for Defendants, Respondents and Real Party in Interest.

OPINION

ROBIE, J.

In this mandamus action under the California Environmental Quality Act (CEQA; Pub. Resources Code, [1] § 21000 et seq.), plaintiffs Elaine and Gerald Rominger challenged a mitigated negative declaration approved by defendant Colusa County with respect to a subdivision proposed by real party in interest Adams Group Inc. The trial court denied the Romingers’ petition based on the conclusion that, notwithstanding the county’s approval of a mitigated negative declaration, the county’s “action in approving the subdivision map was not a project for CEQA purposes and [thus] no review beyond the preliminary review stage was required.”

On the Romingers’ appeal, we conclude the trial court erred in determining the proposed subdivision was not a CEQA project, even though the proposal did not include any specific plans for development. On our independent review of the Romingers’ other complaints, however, we find merit in only one. Specifically, we conclude that the Romingers adequately showed there is substantial evidence in the record that the subdivision may have a significant unmitigated impact on traffic at a particular intersection adjacent to the

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project site. Accordingly, on that basis only, we will reverse and remand for the preparation of an environmental impact report (EIR).

FACTUAL AND PROCEDURAL BACKGROUND

The present action pertains to four adjacent parcels in Colusa County consisting of a total of just over 159 acres that are bordered by County Line Road to the south, Grevie Road to the east, the Southern Pacific Railroad right-of-way to the west, and agricultural land to the north. (We will refer to the four parcels jointly as the Adams subdivision or the project site.) County Line Road intersects Interstate 5 just to the west of the property.

In 2001, the county approved an amendment to its general plan changing the general plan land use designation for the Adams subdivision from agricultural-industrial to industrial and to its zoning ordinance changing the zoning designation from exclusive agriculture to industrial. In connection with that action, the county certified a mitigated negative declaration. Gerald Rominger challenged the county’s action under CEQA, and the parties eventually settled that lawsuit while it was on appeal, with the county agreeing to prepare, circulate, and adopt a revised initial study/mitigated negative declaration incorporating supplemental mitigation.

On May 26, 2009, real party in interest Adams Group Inc. filed an application for approval of a tentative subdivision map to divide the four existing parcels into 16 parcels ranging in size from 1.19 acres to 30.80 acres “for future expansion where separate financing may be needed.”[2] At the time of the application, 93 acres were in agricultural production with the remaining 66 acres of the site occupied by agricultural related light industrial uses and ancillary undeveloped land, including a 11.44-acre detention pond at the northeast corner of the site. The existing agricultural related light industrial operations were accessed by a paved road extending into the site from Grevie Road.

The subdivision application indicated that no specific plan for future expansion was then available and that the intention was to continue the existing use of the property at that time. An attachment to the application described the property as “currently devoted [to] agriculture related industry, ” with “a portion of said property devoted to agriculture production, ” and the surrounding properties as “devoted to agriculture production with one home-site and shop to the north and Interstate 5 to the west.”

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In January 2010, the county hired a consultant to prepare an initial study. The initial study was completed in June 2010 and recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have a significant environmental impact on cultural resources, but that impact could be mitigated to less than significant through mitigation measures.

In July 2010, the county noticed a public hearing for September 13 regarding adoption of the mitigated negative declaration, following a public comment period from July 12 to August 11. During the public comment period, the Romingers submitted comments requesting that the county proceed by way of an EIR rather than a mitigated negative declaration. The Romingers contended the mitigated negative declaration was “legally deficient in a number of areas, including an inadequate project description, a failure to recognize conflicts with the County’s General Plan, and a failure to properly analyze and mitigate for impacts to areas such as agricultural resources, traffic, odor, noise, and water supply.” Among other things, the Romingers complained that “no future use [wa]s analyzed” and “even if the exact use is yet to be determined, the County must analyze the potential impacts of the operations based on the most reasonable significant impacts. [Citation.] Since the types of permissible uses in the Industrial zoning designation have been specified in the County’s Municipal Code, it is both reasonable and feasible for the County to analyze environmental impacts from these activities.” The Romingers further argued that the county’s “fail[ure] to consider the environmental effect of the foreseeable future industrial use and development” would result in the improper “ ‘piece-meal[ing]’ ” of the project.

As a result of the Romingers’ comments, the county determined that a water supply assessment was needed. Accordingly, the county cancelled the public hearing on the original mitigated negative declaration. Thereafter, in September 2010, the Romingers submitted additional comments on the proposed mitigated negative declaration, asserting that it “failed to adequately analyze air quality, odors, greenhouse gas emissions, and noise.”

A revised initial study was completed by August 2011. Like the original study, the revised initial study recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have significant environmental impacts on air quality, cultural resources, and hydrology/water quality, but those impacts could be mitigated to less than significant through mitigation measures.

On August 1, 2011, the county noticed a public hearing before the planning commission on the proposed revised mitigated negative declaration for

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“September 12, 2011, at 9:00 a.m. in the Board of Supervisors Chambers in the Historic Courthouse, located at 547 Market Street, Colusa.” The notice stated that the public comment period would be “from August 7, 2011 to September 5, 2011 at 5:00 p.m.”

As later explained in an agenda report for the board of supervisors, the revised initial study and mitigated negative declaration “evaluate[d] the impacts of potential development that m[ight] be triggered by the subdivision[], including development to facilitate access to and drainage for the newly created parcels, and potential future development of a reasonable development scenario.” The report took the position that because “[t]he future development scenario [wa]s presented for analysis only, and [wa]s not currently proposed, ” “the analysis... completed by the County... actually [wa]s not required by CEQA.” The report further explained as follows: “Based upon available building permit evidence, grading permit record, and visual evidence along the I-5 corridor, it is reasonable to expect that agriculture-related industries will develop on the project site. This projection is based on: a) existing industrial development on the project site is agriculturally related; [and] b) County Planning staff performed a records search, zoning map review, and field survey of properties along the 1-5 corridor, and found that development on industrially zoned properties consists of agriculture-related industries. Although a range of non-agriculture industrial uses are permitted in the M zone, the establishment of these uses is considered unlikely due to the geographical location of Colusa County, the building permit history and pattern, the location of natural resources, and market locations. For each of these reasons, a reasonable future development scenario that assumes agriculturally-related industrial development is analyzed in the County’s [mitigated negative declaration].”

During the public comment period, the Romingers submitted a letter that reiterated the concerns they had previously expressed, asserted defects in the notices of the public hearing and in the close of public comment period, and also detailed additional complaints about the proposed mitigated negative declaration.

Notwithstanding the Romingers’ complaints, the planning commission voted to approve the revised mitigated negative declaration for the project. The Romingers appealed that determination to the board of supervisors. The board of supervisors heard the Romingers’ appeal in February 2012. The board denied the appeal and in March 2012 adopted a resolution approving the project and the revised mitigated negative declaration.

In April 2012, the Romingers commenced the present action by filing a petition for writ of mandate asserting that the county had violated CEQA by

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“failing to prepare an [EIR] for the Project, preparing a deficient mitigated negative declaration... for the Project, adopting insufficient mitigation measures, providing inadequate public review of the [mitigated negative declaration], and approving the Project on the basis of findings that are not supported by substantial evidence.” In response, the county and the real party in interest argued (among other things) that the county “actually exceeded the requirements of CEQA by preparing a [mitigated negative declaration] for a Project that has no potential to result in any physical change in the environment.”

The trial court determined that even though the county had treated the activity as a project for purposes of CEQA by preparing a mitigated negative declaration, that did not preclude the court from determining that the project was not a project for purposes of CEQA. The court then proceeded to make that determination, as follows:

“Here, the same tract was previously the subject of a general plan revision and rezoning. At the time those actions were taken the [Romingers] brought legal action under CEQA to challenge the agency process. That prior dispute resolved by formal agreement between the parties after which time the current zoning and general plan provisions were put in place.

“Now, [the Romingers] challenge the partition of that same property on the basis that the partition will negatively impact the environment by rendering more likely the ultimate development of the tract in question. The record provides no substantial evidentiary support for such a conclusion. [The Romingers’] position that reduced parcel size will lead to accelerated development and development of a more intensive character is sheer speculation. One could as easily posit that a larger industrial tract would be more attractive to development since industrial complexes often require substantial acreage to accommodate their purposes.

“Accordingly, this court finds that County’s action in approving the subdivision map was not a project for CEQA purposes and that no review beyond the preliminary review stage was required.”

From the resulting judgment denying their mandamus petition in March 2013, the Romingers timely appealed.

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DISCUSSION

I

The County Is Not Barred From Asserting That The Adams Subdivision Is Not a CEQA Project or Is Subject to the Commonsense Exemption From CEQA

The Romingers argue that because the county treated the Adams subdivision as a CEQA project at the administrative level—approving a mitigated negative declaration that identified potential environmental impacts—the county should be “barred” from asserting in court that the subdivision is not a CEQA project or is subject to the commonsense exemption from CEQA. We disagree because the Romingers’ argument is based on a false premise.

Although the county, in approving a mitigated negative declaration for the subdivision, acted under the provisions of CEQA, the county always took the position that what it was doing was not required by CEQA. Specifically, the board of supervisors found that “[t]he environmental analysis was conducted to provide public information about impacts that could occur if a reasonable development scenario were to be pursued, ” but “[t]he analysis is informational and not required pursuant to CEQA or local statute.” Thus, it was the county’s position that it was gratuitously conducting a CEQA analysis of the subdivision when the law did not actually require it, because the subdivision either did not qualify as a CEQA project or was subject to the commonsense exemption from CEQA. When the county’s arguments are viewed in this light, it can be seen that the county is not arguing that what it did at the administrative level was wrong, just that it was not legally required by CEQA.[3]

The Romingers have offered us no persuasive reason why the county should be barred from asserting that the environmental review it conducted was more than what was legally mandated. In fact, if the county were correct on this point, it would serve no purpose for the courts to spend valuable time and resources reviewing whether a purely voluntary environmental review complied with legal provisions that did not actually mandate that review. The task of the courts under CEQA is “ ‘to review the agency’s actions to determine whether the agency complied with procedures required by law.’ ” (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113 [62 Cal.Rptr.2d 612], italics added.) The county’s argument here is that its actions

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complied with procedures required by law because the law required no procedures, and thus everything the county did went “above and beyond the requirements of law.” We conclude the county is not barred from making this argument. Thus, notwithstanding is preparation of a mitigated negative declaration, the county is entitled to argue before this court that the Adams subdivision either did not qualify as a CEQA project or was subject to the commonsense exemption from CEQA. As will be seen, however, those arguments are to no avail.

II

The Adams Subdivision Qualifies as a CEQA Project

“CEQA and its implementing administrative regulations... establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. [Citations.] An activity that is not a ‘project’ as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see § 15378) is not subject to CEQA.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380 [60 Cal.Rptr.3d 247, 160 P.3d 116], fn. emitted (Muzzy Ranch).)

“Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact. Thus, for CEQA’s purposes, ‘ “[p]roject” means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.’ [Citation.] Whether an activity is a project is an issue of law that can be decided on undisputed data in the record on appeal.” (Muzzy Ranch, supra, 41 Cal.4th at pp. 381-382.)

Here, the Romingers contend the trial court erred in finding the Adams subdivision was not a CEQA project. In a CEQA case, however, “we review the agency’s action, not the trial court’s decision.” (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) Thus, the question for us is not whether the trial court erred, but rather whether the subdivision qualifies as a CEQA project as a

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matter of law, such that the county’s environmental review of the subdivision was mandatory under CEQA, rather than voluntary as the county asserts. We conclude the subdivision does qualify as a CEQA project.

The Romingers contend the Adams subdivision qualifies as a CEQA project because section 21080 specifically provides that CEQA applies to “the approval of tentative subdivision maps." (Id., subd. (a).) We agree.

Subdivision (a) of section 21080 provides that “[e]xcept as otherwise provided in [CEQA], [CEQA] shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits, and the approval of tentative subdivision maps unless the project is exempt from this division.” (Italics added.) According to the Romingers, this statute makes the approval of a tentative subdivision map a CEQA project categorically. The county responds that “[t]his ignores the facts and elevates form over substance” because “[a]ll subdivisions are not born alike, ” and “[t]he fact remains that the [Adams] Subdivision... will not directly or indirectly result in significant impacts to the environment.”

The answer to the county’s response largely lies in the Supreme Court’s recognition in Muzzy Ranch that “[w]hether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.” (Muzzy Ranch, supra, 41 Cal.4th at p. 381, italics added.) In essence, by enacting subdivision (a) of section 21080 the Legislature has determined that certain activities, including the approval of tentative subdivision maps, always have at least the potential to cause a direct physical change or a reasonably foreseeable indirect physical change in the environment. This makes sense. It virtually goes without saying that the purpose of subdividing property is to facilitate its use and development. (See Gov. Code, § 66424 [defining “subdivision” for purposes of the Subdivision Map Act (Gov. Code, § 66410 et seq.) as "the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future, ” italics added].) Presumably no one goes to the trouble of subdividing property just for the sake of the process; the goal of subdividing property is to make that property more useable. And with the potential for greater or different use comes the potential for environmental impacts from that use. Thus, the Romingers are correct that under subdivision (a) of section 21080, the approval of a tentative subdivision map is categorically a CEQA project.

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This conclusion is supported by our Supreme Court’s analysis in Muzzy Ranch. There, the court determined that the adoption of a land use compatibility plan for the area around Travis Air Force Base qualified as a CEQA project because it was “the sort of activity that may cause a direct physical change or a reasonably foreseeable indirect physical change in the environment.” (Muzzy Ranch, supra, 41 Cal.4th at pp. 378, 382.) Specifically, the court found that “by freezing residential densities in Compatibility Zone C, ” the plan might “have the consequence, notwithstanding existing zoning or land use planning, of displacing development to other areas of the jurisdiction.” (Id. at pp. 382, 383.) The court then determined, however, that the adoption of the plan was nonetheless exempt from CEQA under the common sense exemption (which we will discuss further hereafter) because the plan “simply incorporate[d] existing general plan and zoning law restrictions on residential housing density” and thus “any potential displacement the [plan] might otherwise have effected already ha[d] been caused by the existing land use policies and zoning regulations. . . ." (41 Cal.4th at p. 389.) Accordingly, while the adoption of the plan qualified as a CEQA project because it was the type of activity that might cause a physical change to the environment in that it might cause displacement of residential development to other areas, the adoption of the plan was exempt from CEQA because in fact any such displacement would not be caused by the plan but instead by the existing land use policies and zoning regulations the plan incorporated.

Our Supreme Court’s conclusion in Muzzy Ranch that an activity can qualify as a CEQA project because it is of the sort that may cause environmental effects but can, in turn, be exempt from CEQA because, in fact, it will not cause any such effects supports our conclusion here that whether the approval of the Adams subdivision qualifies as a CEQA project must be determined by looking at the activity categorically. Because the Legislature has determined in section 21080 that the approval of a tentative subdivision map is the sort of activity that may cause physical changes to the environment, the Adams subdivision qualifies as a CEQA project.

III

The Common Sense Exemption Does Not ...


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