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Residents Against Specific Plan 380 v. County of Riverside

California Court of Appeals, Fourth District, Second Division

February 14, 2017

RESIDENTS AGAINST SPECIFIC PLAN 380, Plaintiff and Appellant,
COUNTY OF RIVERSIDE, Defendant and Respondent HANNA MARITAL TRUST, Real Party in Interest and Respondent.

          Certified for publication Date: 3/15/17

         APPEAL from the Superior Court of Riverside County Super.Ct. No. RIC1312923. Sharon J. Waters, Judge. Affirmed.

          Johnson & Sedlack, Raymond W. Johnson, Abigail A. Smith, Kimberly A. Foy, and Kendall Holbrook; Johnson, Smith & Foy, for Plaintiff and Appellant.

          Murphy & Evertz, Douglas J. Evertz, and Bradford B. Grabske; Gregory P. Priamos, County Counsel, Anita C. Willis, Karin Watts-Bazan, and Melissa R. Cushman, Deputy County Counsel, for Defendant and Respondent.

          Allen Matkins Leck Gamble Mallory & Natsis, William R. Devine and Heather S. Riley for Real Party in Interest and Respondent.


          SLOUGH, J.

         Plaintiff Residents Against Specific Plan 380 (appellant) appeals from a judgment denying its petition for a writ of mandate challenging the decision of the County of Riverside (County) to approve development of a master-planned community put forward as Specific Plan 380 by real party in interest, Hanna Marital Trust.

         The County commissioned an Environmental Impact Report (EIR) on the project, which determined all potentially significant environmental impacts except noise and air quality impacts would be reduced below the level of significance after mitigation. The final EIR responded to public comments on a draft EIR requesting further mitigation before the County approved the project. The Riverside County Board of Supervisors (Board of Supervisors) requested modifications of the plan before approving it and determined the changes did not require revision and recirculation of the EIR. After the revisions were codified, the Board of Supervisors certified the final EIR and approved the plan. The County then posted a public notice of its determination which included a description of the project containing errors about certain project details.

         Appellant sought a writ of mandate in the trial court asserting the County failed to comply with procedural, informational, and substantive provisions of the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 2100 et seq.) The trial court denied the petition in its entirety and entered judgment in favor of the County and the Hanna Marital Trust.

         On appeal, appellant contends we should reverse the judgment and direct the trial court to grant its petition on the grounds the County: (1) substantially modified the project after approving it; (2) approved the project without concurrently adopting findings, a statement of overriding consideration, and a mitigation plan; (3) failed to recirculate the final EIR after modifying the project; (4) certified the final EIR despite inadequately analyzing the impacts of the development of the mixed use planning area; (5) issued an erroneous and misleading notice of determination after approving the project; and (6) failed to adopt all feasible mitigation alternatives proposed in comments on the draft EIR. We affirm.



         A. Overview of the Keller Crossing Project

         The Keller Crossing Specific Plan Project (project) proposes a master-planned community with residential, mixed use, commercial, and open space components on approximately 200 acres of land in the French Valley region of Riverside County. The site is undeveloped; approximately 75 percent is used for agricultural purposes and the rest supports native and naturalized vegetation. State Route 79 borders the project to the east, Pourroy Road to the west, and foothills to the north. Keller Road runs through the southern portion of the site.

         Single-family residences occupy the area to the south and west of the site. Single-family residences and agricultural land occupy the area to its east. The area to the north is undeveloped, but approved for residential development and some mixed uses under a different specific plan.

         The Hanna family has owned the site since 1979. In February 2008, the Hanna Marital Trust (Trust) began the approval process to allow development of “single-family homes, retail shops, a family entertainment center, a neighborhood commercial center, medical offices, a medical center, and office/flex space.”

         The project, as approved by the Board of Supervisors on November 5, 2013, includes a general plan amendment (GPA No. 951), a change of zone (CZ No. 7723), and a specific plan (Specific Plan 380). GPA No. 951 amended the Riverside County General Plan Land Use Element by changing the Riverside County General Plan Foundation Component designation from rural foundation to community development and the land use designation from rural residential to commercial retail, mixed use, very-low-density residential, low-density residential, medium-density residential, and open space conservation. CZ No. 7723 changed the zoning classification to those required to implement Specific Plan 380.

         Specific Plan 380, as approved, divides the site into seven geographical sections (planning areas or PAs), which include three very-low-density residential units, 25 low-density residential units, 42 medium-density residential units, 39.5 acres of mixed uses, up to 650, 000 square feet of commercial uses, 61.1 acres of dedicated open space, and 20.2 acres for roads and supporting infrastructure. Figure No. 1 shows the final approved disposition of uses.

         Image Omitted

         B. The Draft EIR and the Notice and Comment Period

         On July 28, 2011, the Riverside County Planning Department (Planning Department) announced the release of a draft EIR, describing the project and notifying interested parties where copies of the draft EIR and supporting documents would be available. The Planning Department set a public review period from August 8 to September 26, 2011, and indicated written comments received during the review period would be included in the final EIR.

         The draft EIR evaluated a version of the plan which proposed breaking the site into eight planning areas, with areas dedicated to commercial offices, commercial retail establishments, and residential units. One planning area was dedicated to mixed uses, including both residential and commercial uses, and another set aside land for open space conservation. The draft EIR specified the acreage for each planning area and allocated uses among them as set out in Table No. 1.

Table No. 1






PA 1

Commercial Office



50, 000

PA 2

Commercial Retail



125, 000

PA 3

Commercial Office



200, 000

PA 4

Low Density Residential




PA 5

Medium Density Residential




PA 6

Mixed Use




PA 7

Commercial Retail



275, 000

PA 8

Open Space Conservation












650, 000

         The draft EIR incorporated an analysis of the proposed project's potentially significant environmental impacts and proposed measures to mitigate them. The report concluded “[w]ith the exception for air quality and noise, all significant impacts would be reduced to below a level of significance following implementation of the mitigation measures.” With respect to air quality, the draft report concluded emissions from project construction would exceed regional criteria pollutant thresholds for certain kinds of emissions. The report identified measures to mitigate those effects, but concluded the air quality effects during construction and operation would be significant and unmitigable.

         The Planning Department received 11 comment letters during the public review period. The letters came from public agencies, Native American tribes, and public utilities. The Planning Department responded to the comments and in some instances incorporated changes in the final report. Among those letters, were comments from the South Coast Air Quality Management District (SCAQMD) and the City of Temecula.

         SCAQMD expressed concern about the project's air quality impacts and requested the Planning Department “require mitigation that reduces local resident's exposure to construction related emissions and reduces the project's operational emissions from new vehicular trips generated by the project.” SCAQMD asked for revisions of Mitigation Measure AQ-3, which required contractors to use California Air Resources Board (CARB) Tier II-certified equipment or better for rubber-tired dozers, rubber-tired loaders, and scrapers. SCAQMD asked instead that, between January 1, 2012 and December 31, 2014, off-road diesel-powered construction equipment greater than 50 horsepower meet Tier 3 off-road emissions standards, construction equipment be outfitted with Best Available Control Technology devices, and emissions control devices achieve emissions reductions not less than what could be achieved by a Level 3 diesel emissions control strategy for a similarly sized engine as defined by CARB regulations. After January 1, 2015, SCAQMD requested off-road diesel-powered construction equipment greater than 50 horsepower meet the Tier 4 emission standards, where available.

         The City of Temecula also requested additional measures designed to further mitigate air quality impacts. Temecula pointed out Mitigation Measure AQ-12 specifies the “project will be required to exceed the 2008 Title 24 Energy Codes, ” but suggested it should “comply with current 2010 California Energy Code and should also consider, as reasonable mitigation measures, compliance with the 2010 California Green Building Standards to further reduce the impacts of the proposed project. Additionally, the proposed project should consider prescriptive mitigation measures such as attic fans, whole house fans, [and] photovoltaic, solar water heaters.”

         C. The Final EIR

         The County released the final EIR in January 2012. The final EIR included the following map (figure No. 2) showing the allocation of land uses among the planning areas.

         Image Omitted

          The final EIR evaluated a version of the plan in its basics identical with the plan evaluated in the draft EIR. The plan proposed breaking the same 201.1 acre project site into the same eight planning areas. Like the plan evaluated in the draft EIR, it dedicated 23.8 acres to commercial office uses in planning areas 1 and 3, 38 acres to commercial retail uses in planning areas 2 and 7, 15.6 acres to low-density residential uses in planning area 4, 20.8 acres to medium-density residential uses in planning area 5, 21.6 acres to mixed uses in planning area 6, 61.1 acres to open space conservation in planning area 8, and 20.2 acres to roads. Also as in the draft EIR, the low-density residential area would accommodate 22 residential units, the medium-density residential area would accommodate 73 residential units, and the mixed use area would accommodate 225 residential units, for a total of 320 residential units. The plan also provided for the same 400, 000 square feet of commercial retail space and 250, 000 square feet of commercial office space, for a total of 650, 000 square feet dedicated to commercial uses.

         The final EIR describes the kind of development allowed in each planning area. In planning areas 1 and 3, “[t]he Commercial Office designation would allow for a variety of administrative and professional office uses, including, but not limited to, business, law, medical, dental, chiropractic, architectural, engineering, and real estate offices. In addition, Commercial Office areas would be suitable for health and exercise centers or gyms; hotels and motels; restaurants; banks and financial institutions; day care centers; and churches, temples, and other places of religious worship. Other uses may be permitted at the discretion of the County Planning Director. [¶]... Planning Area 1 is anticipated to develop as a series of smaller office buildings, rather than a large office park.... [¶]... Planning area 3 would be appropriate for development of a contiguous office park; however, the planning area could be further divided into smaller parcels to accommodate a variety of smaller office complexes.”

         In planning areas 2 and 7, “[t]he Commercial Retail designation would allow for the development of commercial retail uses at a neighborhood, community or regional level, as well as for professional office and tourist-oriented commercial uses. [¶]... [planning area 2] is anticipated to be developed with a neighborhood shopping center that may include a grocery store, drug store, and other locally serving shops.... [¶]... [Planning area 7] is intended to accommodate development at a community or regional level, as well as professional office and tourist-oriented commercial uses. Other uses, such as hotels, recreation and amusement facilities, and those outlined in the Commercial Tourist land use designation of the Riverside County General Plan, would be permitted.”

         In planning area 4, the low-density residential designation would allow “for the development of up to 22 dwelling units on 15.6 acres... Proposed residential units would be comprised of single-family, detached homes one-half-acre minimum lots. Intensive animal-keeping would be discouraged within the Low Density Residential land use designation; however, limited agriculture would be permitted. The Foothill Trail would traverse the northern portion of this planning area within the 100-foot-wide urban/wildland interface and fuel modification zone, between the proposed developed areas and Planning Area 8. Enclosure fences and signs would be installed along the interface where residential development abuts open space.”

         “Up to 73 single-family, detached residences on 5, 000-sf minimum lots would be allowed in Planning Area 5... Planning Area 5 would include an activity center near Planning Area 4. The activity center may consist of one or more of the following: community gardens, picnic tables, barbeques, a dog park, a play area or tot lot, and/or shade structures. In addition, the Foothill Trail would traverse the northern portion of this planning area within the 100-foot-wide urban/wildland interface and fuel modification zone, between the proposed residences and Planning Area 8.”

         Planning Area 6 “would be designated as Mixed Use. It may provide for the development of a CCRC [Continuing Care Retirement Community], which would allow seniors to ‘age in place, ' with flexible accommodations that are designed to meet their health and housing needs as such needs change over time.” The Final EIR specifies the CCRC may include 125 independent living units, 100 assisted living units, a skilled nursing facility with 100 beds, and a memory care facility with 50 beds. The final EIR notes “Planning Area 6 is not required to develop as a CCRC. Should this planning area not be developed with a CCRC, other commercial or residential land uses may be developed if they are compatible with the adjacent planning areas, and if no additional environmental impacts would occur (based on review by the County).”

         Finally, the final EIR says in planning area 8 “61.1 acres (30.4 percent of the Specific Plan Area) would be designated as Open Space Conservation and would remain as permanent natural open space. Planning Area 8 would contribute open space land to Proposed Constrained Linkage 17 of the Western Riverside County [Multi-Species Habitat Conservation Plan]. The proposed project has received a Habitat Acquisition Negotiation Strategy (HANS) determination letter from the Regional Conservation Authority (RCA), concurring with the partial conservation proposed by the Specific Plan. Vegetation communities to be preserved within Planning Area 8 include riversidean sage scrub, non-native grassland, and agricultural land. No trails, hiking, or biking would be permitted within Planning Area 8.”

         Like the draft EIR, the final EIR concluded the plan's mitigation measures would reduce all environmental impacts below a level of significance, except for air quality and noise impacts. The final EIR concluded emissions from project construction “would exceed regional criteria pollutant thresholds... for emissions of volatile organic compounds (VOCs), nitrogen oxides (NOx), particulate matter that is 10 microns or smaller (PM10), and particulate matter that is 2.5 microns or smaller (PM2.5).” The report also concluded emissions during the operation of phases 1 and 2 of the project would exceed pollutant thresholds for VOCs, CO, and NOx, and during the operation of phase 2 would also exceed the threshold for PM10. The report also concluded emissions from short-term construction activities would exceed the localized pollutant thresholds for PM10 and PM2.5 at receptors located within 341 and 246 feet from construction activities. Though the plan set out several mitigation measures for each problem, the report concluded each would remain significant even after mitigation.

         Regarding the noise impacts, the final EIR concluded “[i]mplementation of the project would result in temporary noise impacts related to construction equipment and activities.” The plan includes several mitigation measures. However, the final EIR concluded the noise impacts would remain significant and unmitigable, even after taking those measures into account.

         The final EIR incorporated the comments discussed in part I.B., ante, and included responses to each. First, SCAQMD recommended the Planning Department revise mitigation measure AQ-3 to require contractors to use construction equipment meeting Tier 3 and later Tier 4 off-road emission standards instead of Tier 2 standards. The County responded mitigation measure AQ-3 “reflects the construction equipment that is anticipated to be reasonably available at the time of project construction. As the applicant does not anticipate the reasonable availability of equipment meeting the more stringent requirements proposed by SCAQMD, these have not been incorporated into the required mitigation measures.”

         Second, the City of Temecula recommended the project comply with then-current 2010 California Energy Code. The County agreed “the project will need to comply with the California Energy Code in effect at the time of construction, ” and responded “[t]his standard requirement does not conflict with Mitigation Measure AQ-12's requirement that the project exceed the 2008 California Title 24, Part 6 Energy Efficiency Standards by a minimum of 15 percent. As such standards are rapidly evolving, the 2008 code was chosen as the basis of comparison, rather than requiring conformance to a code that is likely to be out of date when the project is constructed.”

         Third, the City of Temecula recommended the plan require compliance with the 2010 California Green Building Standards and prescriptive mitigation measures, such as attic fans, whole house fans, and photovoltaic, solar water heaters. The Planning Department said “a performance standard was adopted, rather than prescriptive mitigation measures... [to] allow the applicant to tailor implementation to best fit the final project design and technology available at... construction.”

         D. Modifications to Specific Plan 380 After the Final EIR

         1. Planning ...

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