CITIZENS FOR ENVIRONMENTAL RESPONSIBILITY еt al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA ex rel. 14TH DISTRICT AGRICULTURAL ASSOCIATION et al., Defendants and Respondents; STARS OF JUSTICE, INC., Real Party in Interest and Respondent.
No. C070836
Third Dist.
Nov. 23, 2015.
555
Lozeau Drury, Michael R. Lozeau, Richard T. Drury, Christina Caro and Douglas J. Chermak for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Randy L. Barrow and Matthew J. Goldman, Deputy Attorneys General, for Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
MURRAY, J.—The trial court denied a petition for writ of mandate and complaint for declaratory and injunctive relief filed by appellants Citizens for Environmental Responsibility, Stop The Rodeo, and Eric Zamost, under the California Environmental Quality Act (CEQA). (
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Fairground and Salsipuedes Creek
The District administers the Fairground which, since 1941, has been the venue for various events, including equestrian and livestock events and the
The First Rodeo Proposal
In the fall of 2009, the Santa Cruz County Deputy Sheriff‘s Association, acting through its nonprofit corporation Stars of Justice, proposed a three-day “ProRodeo” for October 2010 to raise funds to support programs for children. The application proposed improvements to the Fairground facilities and contemplated future rodeos. Some citizens opposed the ProRodeo on various grounds, including CEQA and cruelty to animals. The District initially approved the ProRodeo in June 2010, concluding the project was exempt from CEQA review under Class 23, normal operations of facilities for public gatherings, but the contract was later revoked in July 2010 due to disagreements between the fair manager and the Stars of Justice.
Creek Contamination and Fairground Monitoring
In 2009, unrelated to the first proposed rodeo, the California Regional Water Quality Control Board for the Central Coast Region (Regional Water Board) determined the water quality of both Corralitos and Salsipuedes Creeks was impaired due to human and animal fecal coliform. As we discuss post, Regional Water Board staff determined that the likely sources were storm drain discharges, homeless persons’ encampments, pet waste, sanitary sewer systems (septic tanks), and farm animals and livestock operations—including Fairground activities.
To restore the water quality, thе Regional Water Board established and allocated responsibilities for achieving a total maximum daily load for fecal coliform in the creeks and imposed prohibitions on the discharge of animal and human fecal material, approved by the State Water Resources Control Board (the State Board) and the United States Environmental Protection Agency (EPA). The Regional Water Board required owners and/or operators to use specific management practices to control discharges containing fecal matter and to monitor and report their progress. The resolution adopted by the Regional
In December 2010, the Fairground began a voluntary stream water monitoring program to identify contaminants in Salsipuedes Creek flowing from upstream, through the Fairground property, and leaving the property flowing downstream. As will be discussed in more detail post, “grab samples” showed that the amount of E. coli in the water leaving the Fairground and flowing downstream was substantially less than the amount of E. coli entering the Fairground from upstream. Routine testing of drinking water from a Fairground well in the equestrian area showed no contamination by coliform or E. coli.
Ongoing Manure Management Practices at the Fairground
The Fairground had taken steps to manage manure produced during its equestrian and livestock events. Beginning in the 1960‘s, the Fairground removed manure and livestock bedding immediately after each event and collected it in a wooden bunker on a cement aggregate slab partially covered by a barn roof and, during the dry season, on a flat section of equestrian area. A contracted company hauled it to a composting facility. Since the early 1990‘s, the manure has been hauled away on a daily basis during equestrian and livestock events. These practiсes were not formalized in a written document until July 19, 2010, after appellants objected to the earlier, grander scale rodeo proposed by Stars of Justice that ultimately did not take place. The written formalization of these past practices—the manure management plan or MMP—calls for bunkers to be cleaned at the end of the event or when close to capacity.5 The MMP also indicates, in addition to the storage and hauling provisions, that earth berms separate the drainage way in the equestrian area from the surroundings to prevent contamination from washing into the drainage way. Contamination is further minimized by harrowing or tilling the soil to promote filtration of rainwater and by planting vegetation on areas with a slope of 15 percent or more, to prevent erosion and promote filtration of surface contaminants. The formal MMP was written approximately six months before Stars of Justice proposed the rodeo project that is the subject of this appeal.
In January 2011, Stars of Justice proposed a scaled-down version of the rodeo for two days, October 1 and 2, 2011 (the rodeo project). Appellants opposed the rodeo project on environmental and other grounds, and the District scheduled a public hearing for April 2011. At that hearing, the board, out of an “abundance of precaution” and fear of lawsuits, considered whether to have an environmental review for the rodeo project conducted by environmental consultant Strelow Consulting, which was working on an unrelated project for the District. The board ultimately voted to have the consultant consider the applicability of the Class 23 categorical exemption to the rodeo. The consultant‘s analysis supported the exemption.
In May 2011, the board adopted the Class 23 NOE and approved the rentаl agreement for the rodeo. As described in the NOE, the event was to take place over the course of two days and was expected to attract about 1,500 spectators, involve a maximum of 500 horses but only 100 on the grounds at any given time, and involve a maximum of 250 cattle/stock with only 50 on the grounds at any given time.
The NOE said the rodeo project was categorically exempt under Guidelines section 15323, the Class 23 exemption for “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose.” The NOE said the Fairground is an existing facility designed for public gatherings, primarily the annual county fair, but other public events are held throughout the year, including equestrian and livestock events. The county fair was established in 1885, and the District bought the current 105-acre Fairground property with state funds in 1941. The first annual fair opened the same year and included a horse show. The Fairground includes three equestrian/livestock arenas and barns, most of which were constructed in 1941 with subsequent improvements. In 1971, a five-year plan for improvements of the horse show area was instituted, with construction of more stalls and cattle holding pens. The existing equestrian facilities have been in existence for at least 50 years, and equestrian and livestock events have always been accommodated at the Fairground. On average, the facility has sponsored two to four equestrian or livestock shows per month for the past 25 to 30 years. In the 1970‘s, the Fairground hosted at least eight annual rodeos. More recently, in each of the last three years, about two dozen equestrian and/or livestock events have been held annually at the Fairground, in addition to the annual county fair. These events include horse shows and performances and livestock events, with attendancе of 100 to 500 spectators for smaller events, 1,000 to 1,200 spectators for larger events, and 1,500 to 3,500 spectators for equestrian and livestock events held during the annual county
The NOE noted the inapplicability of any of the regulatory exceptions to a categorical exemption. “The event will utilize existing arenas, horse barns and other facilities; no construction or physical alterations of the grounds are proposed. The proposed event would not result in impacts on a resource of critical concern (section 15300.2(a)).6 A narrow segment of Salsipuedes Creek flows through the Fairground and the arena area and is mostly an earthen-channel devoid of vegetation within the arena location; a short segment flows through an underground pipeline culvert. Horse and livestock manure is strictly managed in accordance with the District‘s ‘Manure Management Plan.’ Manure is collected, contained in enclosed bunkers and hauled offsite, and animal washdown areas flow to the existing sanitary sewer. These required operations and management of the animals will prevent non-point source pollution into the creek and indirect impacts to the aquatic species that may be present. There are no known significant cumulative impacts to which the project would contribute, i.e. successive projects of the same type in the vicinity (section 15300.2(b)). As there is no planned construction or alteration of the Fairground[] facilities or grounds, and with implementation of animal and manure management, no significant impacts are anticipated (section 15300.2(c)). Similarly, the project site is not adjacent to a designаted scenic highway, and the project would not damage scenic resources (section 15300.2(d)). The site is not a hazardous waste site (section 15300.2(e)). No historical resources would be affected by the project (section 15300.2(f)).”
The Petition for Writ of Mandate and the Trial Court‘s Rulings
On June 29, 2011, appellants filed in the trial court their petition for writ of mandate and complaint for injunctive and declaratory relief. On September 27, 2011, the trial court heard argument, took the matter under submission, and subsequently declined to prevent the rodeo from going forward the following week.
The rodeo took place, as planned, on October 1 and 2, 2011.
On January 24, 2012, the trial court issued its statement of decision. The trial court ruled that the evidence supported the factual findings that the rodeo project—which was similar to the horse and livestock events—was a normal activity of the Fairground, the Fairground is a facility for public gatherings
The trial court ruled that the exemption exception, involving situations where there is a “reasonable possibility” that the activity will have a “significant effect” on the environment “due to unusual circumstances,” did not apply. (Guidelines,
On the issue of significant effect, the trial court expressly rejected appellants’ heavy reliance on the Regional Water Board report, which discussed the likely sources of fecal coliform. The court noted that the report “contained no water sampling results to establish that storm water discharges or runoff from the Fairground was actually contributing fecal material to Salsipuedes Creek. Nor did the report show any awareness of the Fairground‘s [MMP] designed to collect manure from horses and livestock participating in Fairground events. The report merely noted that the Fairground hosted a number of farm animal events throughout the year and that Regional Water Board staff, when surveying the area, had observed a single horse but no management measures on the Fairground to prevent storm water runoff from the ‘manure area’ from entering surface waters of Salsipuedes Creek. [Citation.] The report did not indicate what was meant by ‘manure area,’ that the Regional Water Board staff had observed manure in that area,
The trial court also ruled that the exemption exception involving situations where “the cumulative impact of successive projects of the same type in the same place, over time is significant” did not apply. (Guidelines,
The trial court also rejected appellants’ invocation of the exemption exception for projects on sites included in a list of hazardous waste sites (the Cortese list). (Guidelines,
On February 3, 2012, the trial court entered judgment in favor of the District and Stars of Justice.
DISCUSSION
I. CEQA Overview
“CEQA is a comprehensive scheme designed to provide long-term protection to the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112 [65 Cal.Rptr.2d 580, 939 P.2d 1280].) It is to be interpreted ” ‘to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ ” (Ibid.) (2) “By statute, the Legislature has . . . directed the Secretary of the Natural Resources Agenсy . . . to establish ‘a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from’ CEQA. (
The lead agency has the burden to demonstrate that a project falls within a categorical exemption and the agency‘s determination must be supported by substantial evidence. (Cal. Farm Bureau, supra, 143 Cal.App.4th at p. 185.) Once the agency establishes that the project is exempt, the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2. (Cal. Farm Bureau, at p. 186.)
II. The Manure Management Program
Appellants argue the MMP constitutes a mitigation measure for the rodeo project, precluding the Class 23 categorical exemption. We disagree.
” ‘An agency should decide whether a project is eligible for a categorical exemption as part of its preliminary review of the project’ without reference to or reliance upon any proposed mitigation measures.” (Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1106 [23 Cal.Rptr.3d 321], italics added (Salmon Protection); see Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1199 [61 Cal.Rptr.2d 447] (Azusa).)
Appellants argue the MMP falls squarely within this definition because it reduces or eliminates the impact over time by preservation and maintenance operations during the life of the action. Appellants note the NOE relies on the MMP to “prevent” non-point-source pollution into the creek and indirеct impacts to aquatic species and finds no significant impacts with implementation of the MMP.
However, the MMP is not a new measure proposed for or necessitated by the rodeo project. Rather, it is a preexisting measure previously implemented to address a preexisting concern, which was formalized in writing before the rodeo project was proposed. Thus, the MMP is actually part of the ongoing “normal operations” of the Fairground. Use of this measure does not disqualify the rodeo project from Class 23 exemption.
Appellants rely on Salmon Protection to make their point, but their reliance is misplaced. In Salmon Protection, a county determined that the proposed construction of a home was categorically exempt from CEQA under an exemption for single-family homes, even though the home was adjacent to a protected anadromous fish stream and within a stream conservation area which the county conceded was of “critical concern.” (Salmon Protection, supra, 125 Cal.App.4th at p. 1106.) In arriving at the conclusion that there was no reasonable possibility of significant environmental impacts that would preclude the exemption, the county relied on proposed mitigation measures attached to the grant of the categorical exemption. The landowner‘s engineering consultant acknowledged runoff from new rooftops and driveways could erode streambanks. Consequently, the consultant proposed dozens of drainage features for erosion and sediment control. (Id. at pp. 1106–1107.)
The Salmon Protection court affirmed the trial court‘s order to set aside the county‘s approval of the project, stating, “Reliance upon mitigation measures (whether included in the application or later adopted) involves an evaluative process of assessing those mitigation measures and weighing them against potential environmental impacts, and that process must be conducted under established CEQA standards and procedures for EIRs [(environmental impact reports)] or negative declarations.” (Salmon Protection, supra, 125 Cal.App.4th at
Here, unlike Salmon Protection, the NOE did not refer to or rely upon any “proposed” mitigation measures. Rather, as we have noted, the MMP predated this rodeo project and formalized practices that had been implemented for decades. Nothing in the NOE suggests the MMP was created for this project. Quite the contrary, the NOE reads: “Horse and livestock manure is strictly managed in accordance with the District‘s ‘Manure Management Plan.’ Manure is collected, contained in enclosed bunkers and hauled offsite, and animal washdown areas flow to the existing sanitary sewer. These required operations and management of the animals will prevent non-point source pollution into the creek and indirect impacts to aquatic species that may be present.”
Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329 [122 Cal.Rptr.3d 781] (Wollmer) is illustrative. In Wollmer, an individual challenged the city‘s approval of a mixed-use building the city found exempt under the exemption for in-fill development. (Id. at pp. 1336–1337.) The city had preexisting traffic issues at the intersection where the proposed building was to be constructed. Wollmer contended that the city evaded CEQA by “cutting a deal” with the developers whereby the developers would dedicate land for a left turn lane on a street at the intersection where the developers planned to construct the building, thereby reducing traffic impacts to less than significant, a necessary condition for the categorical exemption. (193 Cal.App.4th at p. 1352.) The Wollmer court rejected the argument, agreeing with the trial court that the city did not mitigate the project into qualifying for a categorical exemption. Rather, the city properly exercised discretion to find the project would not cause a significant traffic impact. (Ibid.) The dedication of the right-of-way, enabling the city to improve the intersection, “was not a CEQA mitigation measure for project impacts, but a component of the project that assisted the City with an existing traffic issue.” (Ibid.) The appellate court said it was true “that by the time of the final traffic study, the Developers had made the dedication offer and that reality was included in the traffic analysis. Our response is, so what? The point is, the offer of dedication did become
Similarly, here the problem of manure management at the Fairground and the Fairground‘s MMP preexisted the rodeo project. The MMP was not prоposed as a mitigation measure for the rodeo project. It was part of the “normal operations” of the Fairground, and we see no reason why the implementation of a public gathering facility‘s preexisting program that is part of the facility‘s normal operations and designed to address ongoing issues should preclude Class 23 exemption.
Appellants claim Wollmer is distinguishable because it dealt with an existing concern independent of the project, whereas here the concern stemmed from the rodeo project itself. We disagree. Given the nature and number of the other equestrian and livestock events, manure management was an ongoing concern at the Fairground. Here, even more so than the measure in Wollmer, the MMP was never a proposed mitigation measure for this rodeo project. Indeed, unlike Wollmer, evidence in the record supports a finding that the so-called mitigation measure here was in place for decades. While the aborted first rodeo project may have provided an impetus for the District to formalize the MMP by putting it in writing, it was not the initial rodeo plan or this rodeo project that created a need for the MMP or the procedures reflected in the plan that had long since been implemented.
In their reply brief, appellants make a factual argument, contending for the first time that the MMP had not been an ongoing policy for decades. Appellants point to documents from a May 24, 2011, District meeting showing complaints from a horse show operator, Bud Thoman, who complained of problems his horse show encountered with “changes recently made to the facility and operations of the arena including . . . the change in manure removal strategy” which assertedly created a hazard during horse show operations. He said, “The proposed handling of manure I was advised that manure was to be, be taken from in front of each stall on the day, uh, as opposed to using a local pile method that we had in the past.” Appellants also refer to the minutes of that same meeting showing comments by horse show committee member Blanca Boyd that “the manure trailers that Mr. Thoman objected to previously as interfering with the flow of traffic during his horse
These new points do not change our analysis.7 At most, they suggest contrary evidence indicating the change to daily hauling of manure, as opposed to hauling after the events, may have been a recent change that applies to all events, which of course means the change applies to and is part of the ongoing preexisting operations of the Fairground. Thus, even assuming daily hauling was a recent change as of Mr. Thoman‘s May 2011 comment, the change was already in place when the District issued the NOE in May 2011 for this October 2011 rodeo. The critical point is that the MMP preexisted the NOE for this rodeo project and was directed toward a preexisting concern. It was not proposed for or created by this rodeo project.
We conclude the MMP was not a mitigation measure precluding the categorical exemption. We next consider the categorical exemption and the applicability of the unusual circumstances exception that would disqualify the rodeo project from exemption.
III. Class 23 Categorical Exemption—Normal Operations of Public Gathering Facilities
Appellants contend the unusual circumstances exception, which applies when there are “significant effect[s] on the environment” “due to unusual circumstances” (Guidelines,
However, before determining the applicability of the unusual circumstances exception to the exemption, we must determine the scope of the exemption
We read the Class 23 categorical exemption for “normal operations” of public gathering facilities as consisting of three elements. The exemption applies to projects (1) that are normal operations of existing facilities for public gatherings for which the facilities were designed, (2) where there is a past history of the facility being used for the same or similar purpose within at least the past three years, and (3) where there is a reasonable expectation that the future occurrence of the activity would not represent a change in the operation of the facility. (Guidelines,
The “normal operations” of the Fairground are the public events and activities it puts on and the internal operations it employs to facilitate the production of those events. The rodeo project is indistinguishable from other livestock and equestrian events held at the Fairground for many, many years. It involves the presence of no more cattle and/or horses in Fairground facilities than have been present for prior events. These facilities are designed to house those animals, and no changes to the facility or facility operations are necessary for the rodeo project. We conclude that the Class 23 categorical exemption applies to the rodeo project.
IV. The Unusual Circumstances Exception8
A. The Analytical Framework and Standards of Review
In Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1107 [147 Cal.Rptr.3d 480] (Voices), this court said two questions are at issue in reviewing an agency‘s determination that a project did not trigger the exception for unusual circumstances that have a significant effect on the environment. ” ‘First, we inquire whether the [p]roject presents unusual circumstances.9 Second, we inquire whether there is a reasonable
In Berkeley Hillside, supra, 60 Cal.4th 1086, our high court added additional clarification to the unusual circumstance exception analysis. The court identified two alternative ways to prove the exception. (Id. at p. 1105.)
In the first alternative, as this court said in Voices, a challenger must prove both unusual circumstances and a significant environmental effect that is due to those circumstances. In this method of proof, the unusual circumstances relate to some feature of the project that distinguishes the project from other features in the exempt class. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) Once an unusual circumstance is proved under this method, then the “party need only show a reasonable possibility of a significant effect due to that unusual circumstance.” (Ibid., italics added.)
The court in Berkeley Hillside made clear that “section 21168.5‘s10 abuse of discretion standard appl[ies] on review of an agency‘s decision with respect to the unusual circumstances exception. The determination as to whether there are ‘unusual circumstances’ [citation] is reviewed under section 21168.5‘s substantial evidence prong. However, an agency‘s finding as to whether unusual circumstаnces give rise to ‘a reasonable possibility that the activity will have a significant effect on the environment’ [citation] is reviewed to determine whether the agency, in applying the fair argument standard, ‘proceeded in [the] manner required by law.’ [Citations.]” (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.)
As for the first prong of the exception—whether the project presents circumstances that are unusual for projects in an exempt class—this question is essentially a factual inquiry for which the lead agency serves as ” ‘the finder of fact.’ ” (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) Thus,
As for the second prong of the exception—whether there is a “‘reasonable possibility’” that an unusual circumstance will produce “‘a significant effect on the environment’” —our high court has said “a different approach is appropriate, both by the agency making the determination and by reviewing courts.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1115.) “[W]hen there are ‘unusual circumstances,’ it is appropriate for agencies to apply the fair argument standard in determining whether ‘there is a reasonable possibility [of] a significant effect on the environment due to unusual circumstances.’” (Ibid., italics added.) Under the fair argument test, “‘an agency is merely supposed to look to see if the record shows substantial evidence of a fair argument that there may be a significant effect. [Citations.] In other words, the agency is not to weigh the evidence to come to its own conclusion about whether there will be a significant effect. It is merely supposed to inquire, as a matter of law, whether the record reveals a fair argument. . . . “[I]t does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.” [Citation.]’” (Id. at pp. 1103–1104, second italics added, quoting Banker’s Hill, supra, 139 Cal.App.4th at p. 263.) Thus, a lead agency must find there is a fair argument even when presented with other substantial evidence that the project will not have a significant environmental effect. (Berkeley Hillside, at p. 1111; see
In the second alternative for proving the unusual circumstance exception, “a party may establish an unusual circumstance with evidence that
As for the second prong under this second alternative, no other proof is necessary. Evidence that a project will have a significant environmental effect, “if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’ [Citation.]” (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) In other words, a showing by substantial evidence that a project will have a significant effect on the environment satisfies both prongs of the unusual circumstance exception under the second method of establishing the exception.
We now look to the proof in this case related to the unusual circumstances prong.
B. Proving Unusual Circumstances
As we have noted, under Berkeley Hillside, there are two ways to prove the unusual circumstances prong of the exception. We begin with the first alternative.
1. Features of the Project as Unusual Circumstances
As this court observed in Voices, the Guidelines do not define the term “unusual circumstances.” (See Voices, supra, 209 Cal.App.4th at p. 1109.) However, as our high court noted in Berkeley Hillside, a party can show an unusual circumstance by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105; accord, Voices, at p. 1109 [“‘whether a circumstance is “unusual” is judged relative to the typical circumstances related to an otherwise typically exempt project’”]; San Lorenzo, supra, 139 Cal.App.4th at p. 1381 [an unusual circumstance refers to some feature of the project that distinguishes it from others in the exempt class]; Azusa, supra, 52 Cal.App.4th at p. 1207 [courts view circumstances as
Appellants contend that we must not compare the rodeo project to other Fairground events in determining whether it presents unusual circumstances, but rather we must compare the rodeo project to activities held at other facilities that would be exempt under the Class 23 exemption. According to appellants, we must compare the circumstances presented by a proposed project to all public gathering facilities in general, including “racetracks, stadiums, convention centers, auditoriums, amphitheaters, planetariums, swimming pools, and amusement parks” (see
Wе reject appellants’ argument for two reasons specific to the Class 23 exemption for the normal operations of public gathering facilities. First, examining public gathering facilities generally covered by the exemption in most cases will not produce an apples-to-apples comparison from which courts could determine whether a circumstance related to normal operations is usual or unusual. Racetracks, stadiums, convention centers, auditoriums, amphitheaters, planetariums, swimming pools, and amusement parks are so different in general that any comparison of circumstances relating to the operations of such facilities will often yield unhelpful results. This is so simply because a project that would be unusual for one venue, may not be unusual for another type of public gathering facility given the nature of the operations at such facilities. For example, it would be extremely unusual to have horses or cattle and manure anywhere near a public swimming pool; thus, a comparison of the operations of public swimming pools to fairground facilities for usual and unusual circumstances would be unfair. Second, even
Appellants rely primarily on Azusa for the proposition that we must cоmpare the Fairground to all other public gathering facilities in general and that proximity to a water source could be an unusual circumstance. Azusa did not involve a Class 23 exemption for “normal operations” of public gathering facilities. That case involved a “Class 1” exemption for the “operation . . . or minor alteration of existing . . . facilities” (
The project in Azusa was the reopening of an 80-acre unlined municipal solid waste landfill located in an empty sand and gravel pit which was
The Azusa court then went on to criticize the regional water board’s implied finding that the unusual circumstances exception15 did not preclude the categorical exemption. (Azusa, supra, 52 Cal.App.4th at pp. 1197–1209.) In looking at the first question in determining the applicability of the exception—the existence of an unusual circumstance—the court noted numerous circumstances that were unusual in comparison with “existing facilities in general” (id. at p. 1207), including the circumstance that large-scale disposal of municipal waste was not entitled to any exemption; waste
Appellants also rely on Hollywoodland for support of their contention that we must look to other facilities in general covered by the exemption when determining whether the proposed project has unusual circumstances. In Hollywoodland, the petitioners sought to compel the City of Los Angeles to rescind approval of a wooden fence a homeowner had constructed atop one of the historic granite walls in the Hollywoodland community. (Hollywoodland, supra, 161 Cal.App.4th at p. 1172.) On appeal, the court rejected the city’s position that the fence was categorically exempt under “Class 5” because it represented a “‘minor’ alteration in land use limitations.”17 (161 Cal.App.4th at p. 1180.) The court further held that even if the fence were exempt, the unusual circumstances exception precluded the exemption because there was a strong possibility of an adverse impact upon a historical monument. (Id. at p. 1185.) In making the latter determination, the court reasoned that the city failed to consider whether the circumstances of
The Class 23 exemption for the normal operations of public gathering facilities is different from the Class 5 exemption for minor land use alterations. Because the gravamen of the Class 5 exemption is an alteration to a land use, the focus of comparison is appropriately on other minor land use alterations in general. The Class 23 exemption, on the other hand, involves the various activities that are “normal operations” of a public gathering facility, and the focus of comparison should, therefore, be on those activities that make up the facility’s normal operations. Hollywoodland does not support appellants’ position.
Appellants also find support for their argument in Wollmer. We do not. In Wollmer, the city determined that the proposed mixed-use building project was exempt under the “Class 32” exemption for in-fill development.18 The appellant argued that the location of the project at the intersection of two major thoroughfares, and his view of the city’s traffic modeling, qualified as unusual circumstances. (Wollmer, supra, 193 Cal.App.4th at pp. 1351–1352.) Appellants here focus on the Wollmer court’s holding regarding the location argument, quoting the court’s statement that “locating an in-fill project at the intersection of two major city streets that also happen to serve as state highway routes is well within the range of characteristics one would ex[pec]t for class 32 projects and precisely what the law encourages.” (Id. at p. 1351.) We fail to see how this advances appellants’ position here. The quote relates solely to the Wollmer court’s observation that the location was not an unusual circumstance because the location fit the criteria of the in-fill exemption. (Ibid.)
Appellants rely on Myers v. Board of Supervisors (1976) 58 Cal.App.3d 413 [129 Cal.Rptr. 902] (Myers) for the proposition that a nearby water source is
Appellants also misplace reliance on Meridian Ocean Systems, Inc. v. State Lands Com. (1990) 222 Cal.App.3d 153 [271 Cal.Rptr. 445] for the proposition that proximity to a water source is an unusual circumstance. In Meridian, three companies engaged in the business of conducting seismic research in the Pacific Ocean sued the State Lands Commission after the commission ordered preparation of an EIR (environmental impact report) before acting on applications to renew the companies’ permits. (Id. at pp. 162–163.) Meridian is obviously distinguishable. There, the water source was not merely in close proximity; rather, the project activities took place in the water source. Moreover, the Meridian court did not actually hold that the water source was the unusual circumstance. The court determined that the unusual circumstance was the fact that new scientific evidence showing a possible significant effect on the environment was not available when a previous exemption was granted. (Id. at p. 164.) Meridian does not support appellants’ contention.
Without analysis, appellants cite McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136 [249 Cal.Rptr. 439] (disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2 [38 Cal.Rptr.2d 139, 888 P.2d 1268] (Western States)), for the proposition that “[w]here the location of a project is endowed with contamination that relates to the project, then unusual circumstances exist as to both the project and the facility.” Appellants overstate the holding of that case. In McQueen, the project involved the purchase of two parcels by a regional open space district from the federal government. The parcels, which adjoined the district’s open space reserve, formerly had been an Air Force station and a ground-to-air transmitter site. (McQueen, at p. 1140.) The property was polluted. (Id. at pp. 1140–1141.) The McQueen court first held that the district’s description of the project was misleading because it described the project as “acquisition of named surplus federal property for public open space” (id. at p. 1144), when the project not only involved acquisition but also maintenance of hazardous waste known to be on the property (id. at pp. 1143–1147). After concluding that the project was not exempt under the exemptions asserted by the district (including the “Class 25” exemption for transfers of ownership of interests in land in order to preserve open space), the McQueen court held that the exemptions were precluded for the additional reason that the unusual circumstances exemption applied. (Id. at pp. 1148–1149.) The court reasoned, “the known existence of PCB [polychlorinated biphenyl] and other hazardous wastes on property to be acquired is an unusual circumstance . . .” threatening the environment. (Id. at p. 1149, italics added.)
Appellants suggest the court in Salmon Protection also found an “unusual circumstance” in a project’s proximity to a creek. Not so. Salmon Protection did not involve application of the unusual circumstances exception at all. As we discussed ante, the court in Salmon Protection held that the project was not exempt because the county relied upon proposed mitigation measures to grant a categorical exemption. (Salmon Protection, supra, 125 Cal.App.4th at pp. 1106–1108.)
There are only two published cases involving the Class 23 exemption for the normal operation of public gathering facilities, both from this court. Appellants rely upon one, Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d 823 [211 Cal.Rptr. 884] (Lewis), and ignore the other, Campbell v. Third Dist. Agricultural Assn. (1987) 195 Cal.App.3d 115 [240 Cal.Rptr. 481] (Campbell), which distinguished Lewis on a point that is relevant here.
At first blush, Lewis seems supportive of the notion that proximity of a neighborhood to a public gathering facility activity could be an unusual circumstance. But a closer look at Lewis reveals that it was actually the activity in question, made possible by a change in the facility, which presented the unusual circumstаnce. The public gathering facility in Lewis was a modified racetrack at a county fairground situated less than a mile from a residential neighborhood. For some 15 years, a flat dirt racetrack had been used for auto races until a banked track was constructed in 1973. (Lewis, supra, 165 Cal.App.3d at p. 826.) The new track allowed for higher powered “‘modified stock’ car” races. (Ibid.) Residents complained about the noise and dust generated from the modified stock car races, and in 1980, the district association undertook a study. In the meantime, a resident sought mandamus and injunctive relief, complaining that the modified stock car races had been conducted without environmental review and seeking cancellation of the contract between the agricultural district association and the promoter of the races. (Id. at pp. 826–827.) Thereafter, the district association filed a notice of exemption, relying on the Class 23 exemption for normal operations of public gathering facilities. (Id. at pp. 827–828.) This court held that the district
It does not appear that the unusual circumstances prong of the exception was a matter of active dispute in Lewis as there was substantive analysis only on the significant effect prong. The key unusual circumstance that differentiated the project from other auto racing events that had been held prior to the modification of the track was that the modified stock car racing was noisier and created more dust. (Lewis, supra, 165 Cal.App.3d at p. 829.) However, while this court stated it was limiting its analysis to the application of the normal operations exemption to the “‘unusual circumstances’ in [the] case, those concerning neighboring residences,” it also said “therе is no question of the existence of unusual circumstances—the adjacency of residential areas to the racetrack.” (Id. at p. 829, italics added; see id. at pp. 828–829.) Yet, the adjacency of the residences existed before the track was banked, and it was actually the characteristics of the modified stock car races—more noise and dust—that were the unusual circumstances concerning the nearby residences that made the modified stock car race project different from events that had taken place at the fairground prior to the modification of the track.21 Thus, although the court called the adjacency of the residences an unusual circumstance, without the added noise and dust, the project presented no circumstances that were different from the preexisting normal operations of the fairground, including previous auto races.
Here, the issue is not noise and dust permeating nearby neighborhoods, but rather the horse and cattle manure and the potential impact on the nearby creek.22 Appellants show no change in the facility, nor a change in the use of the facility relative to the temporary housing of cattle and horses, nor any other change in operations, let alone changes that could constitute unusual circumstances. Thus, Lewis, where there was a significant change in the operation which resulted in unusual circumstances compared to previous operations, is of no help to appellants.
Here, the rodeo project had no unusual circumstances to distinguish it from others in the exempt class, e.g., other “normal operations” of the Fairground. The normal operations of the Fairground included about two dozen equestrian and/or livestock events each year for at least the last three years before the rodeo. The proposed rodeo did not involve more horses or livestock than were used for the other events and no changes to the facility or the operations were necessary.
Courts may also look to conditions in the immediate vicinity of a proposed project to determine whether a circumstance is unusual. (Berkeley Hillside, supra, 60 Cal.4th at pp. 1118–1119.) This includes whether the project is consistent with the surrounding zoning and land uses. In City of Pasadena v. State of California (1993) 14 Cal.App.4th 810 [17 Cal.Rptr.2d 766] (City of Pasadena) (disapproved on other grounds in Western States, supra, 9 Cal.4th at p. 570, fn. 2), a city tried to void a lease between the state and a private landowner for the state to operate a parole office in a building located in the city. (City of Pasadena, at p. 814.) The state invoked a categorical exemption for “the leasing of existing office space which has been determined not to have a significant impact upon the environment.” (Id. at p. 820.) The city argued the exemption was rendered inapplicable by the exception for unusual circumstances because the building was located next door to the library, a historic building of cultural significance, and residential development was in progress nearby. (Id. at p. 826.) The appellate court held the lease of the building for use as a parole office “does not constitute an ‘unusuаl circumstance’ within the meaning of CEQA in light of the presence of . . . other custodial and criminal justice facilities in the immediate area.” (Id. at pp. 826–827.)
In Bloom v. McGurk (1994) 26 Cal.App.4th 1307 [31 Cal.Rptr.2d 914], an individual sought a writ of mandate to set aside permits issued for the continued operation of a medical waste treatment facility. The agency had determined that the facility was exempt under the Class 1 exemption for
Here, the rodeo was consistent with the surrounding zoning, which was commercial agricultural, permitting the commercial raising of animals, including grazing and livestock production, and residential agricultural, permitting animal keeping and farming. Compared to the activities in the surrounding area, the rodeo presented no unusual circumstances.
We may also look to the scope and size of the project as a potential unusual circumstance. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) Voices is an example. There, this court held that the unusual circumstances exception applied to an irrigation district’s agreement to provide water to a tribal casino and hotel project. (Voices, supra, 209 Cal.App.4th at pp. 1108–1114.) The project involved relocating the existing three-inch water meter and installing a short section of pipeline linking the meter to an existing water main, both of which would occur on tribal land. (Id. at p. 1103.) The district determined the project was exempt under the Class 3 categorical exemption for new construсtion or conversion of small structures.23 (209 Cal.App.4th at p. 1104.) This court concluded, “the MOU [(memorandum of understanding)] project presents circumstances that are unusual for this categorical exemption. The proposed project’s scope, providing 216 additional EDU’s [(equivalent dwelling units)] of water to a casino and hotel project so large it brings with it its own freeway interchange instead of providing one or four EDU’s of water as contemplated by the class 3 categorical exemption is an unusual circumstance under that exemption. The sheer amount of water to be conveyed under the MOU obviously is a fact that distinguishes the project from the types of projects contemplated by the class 3 categorical exemption.” (Id. at p. 1109.)
Here, perhaps appellants evade comparison of the rodeo project to other Fairground equestrian and livestock events because they have no answer for
Assuming we are required to compare the Fairground to other fairgrounds and further assuming the creek could be considered an unusual circumstance compared to other fairgrounds, appellants’ asserted comparison to other facilities is not supported by evidence in the record. Appellants argue that, “[a]lthough most fairgrounds include livestock and animal evеnts, the normal fairground does not have documented discharges of [stormwater] from corral areas directly to a creek” (italics added), but appellants cite no evidence to support this factual contention. Without supporting evidence, we must regard their assertion as speculative. Indeed, we could just as easily speculate that there are other county fairgrounds that have similar issues related to storm water runoff into nearby water sources or runoff into storm drains that flow into water sources, so the circumstances at the Fairground here are not necessarily unusual. As we have noted, once an agency meets its burden of establishing that a project is categorically exempt, the burden shifts to the party challenging the exemption to produce substantial evidence establishing the exception (Hollywoodland, supra, 161 Cal.App.4th at p. 1186; Cal. Farm Bureau, supra, 143 Cal.App.4th at pp. 185–186), including establishing the existence of “unusual circumstances” (Berkeley Hillside, supra, 60 Cal.4th at pp. 1104–1105; Wollmer, supra, 193 Cal.App.4th at pp. 1350–1351). Appellants cannot satisfy this burden by speculation. They must provide evidence.
Appellants have not produced substantial evidence supporting a finding of unusual circumstances based on features related to the rodeo project. To the contrary, we conclude that the agency’s determination of the absence of unusual circumstances in this regard is supported by substantial evidence. (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.)24
We now turn to the alternate way a challenger can establish the unusual circumstances prong of the unusual circumstances exception. While our high court in Berkeley Hillside held that a mere reasonable possibility a project may have a significant environmental effect is insufficient to establish the unusual circumstances exception (Berkeley Hillside, supra, 60 Cal.4th at pp. 1097, 1104), the court also held that “a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” (Id. at p. 1105, italics added.) The reason for this alternative method is that “evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual.” (Ibid.) This method of proving unusual circumstances requires that the project challenger provide more than “‘substantial evidence’ of ‘a fair argument that the project will have significant environmental effects.’” (Id. at p. 1106.) A project challenger must prove that the project will have a significant effect on the environment. (Id. at p. 1105Ibid.) A “significant effect on the environment” is “a substantial adverse change in the physical conditions which exist in the area affected by the proposed project.” (
Appellants made no attempt before the District’s board or in the trial court to prove the rodeo project will actually have a significant effect on the environment. The entire thrust of appellants’ argument below and on appeal is that the rodeo project creates an environmental risk to Salsipuedes Creek because in their view, there is a reasonable possibility that the project may have a significant environmental effect on the creek. Their argument is grounded on the assertion that there is a fair argument the rodeo project may have significant adverse pollution effects on Salsipuedes Creek. However, the evidence they rely upon and their arguments fall well short of establishing that the rodeo project will have a significant environmental effect on the creek.
Appellants point to a video taken by one of the appellants “during a rain event at the Fairground[].” The video shows muddy rainwater flowing from the horse and cattle area over dirt roads, earth, and vegetation into a drain adjacent to the creek. Muddy water is also depicted pouring out of an underground pipeline culvert. In their appellate briefing, appellants do not assert that there was an equestrian event at the Fairground during this time; nor do they say there was livestock present. And there is no activity taking place, nor are there horses or livestock seen in the video. As the trial court
Appellants also claim that the record includes photos showing “muddy, contaminated water” exiting the discharge pipe in the creek that drains from that storm drain. We have reviewed the black-and-white photocopies of these photographs in the record. As the trial court noted, there is no evidence when the photographs were taken. No horses, livestock, or activity are depicted in the photographs. While it is difficult to tell from the copies we have in the record, the trial court (which presumably had original color photographs) noted that there was one photograph that showed something resembling manure, but the court also noted there was no evidence establishing how long the suspected manure had been there, whether it was quickly collected, or whether this was an isolated incident. From what we can tell from the black-and-white photocopy of that photograph, there is no water flowing in the area of this suspected manure. Furthermore, like the water depicted in the video, appellants point to no test results or other evidence substantiating their bald claim that the water depicted in the photographs was, in fact, contaminated. Nor does this evidence establish a “significant” environmental effect. Appellants merely argue that there is a “reasonable inference” the Fairground contributes bacteria to the creek and that a large event close to the beginning of the rainy season will create pollution sources that “may have a significant impact” (italics added) to the creek.
Appellants also rely on public comment which quoted an Internet article from the High Plains/Midwest Ag Journal about the annual Reno rodеo. That article read in part, “Rodeo operators say cleanup of animal waste and other debris is a top priority, and loads of manure and straw are removed daily. But there’s really no way to capture it all, and some inevitably reaches the river.”25 Appellants cite a research study in the record concerning E. coli outbreaks at agricultural fairs, which indicates that E. coli is frequently found in cattle feces and persists several months after fairs end. Citing another Internet article (this one from an unknown source), appellants assert that “[i]nfections at fairgrounds have resulted from apparent exposure to dirt and dust at the facility, and accumulated on environmental surfaces.” Yet, none of this information pertains to the Fairground’s operations here or Salsipuedes Creek and thus none of it establishes that the rodeo project will have a significant impact on the creek.
As they did below, appellants rely heavily on the Regional Water Board’s determination that livestock operations in the area likely contribute to fecal
Storm drain discharges having nothing to do with the Fairground “likely contributed the most FIB” to Salsipuedes Creek. Staff opined that FIB in these discharges was the result of municipal collection system sewage spills and leaks, urban runoff that contains pet waste, dumpster leachate, and bird, rodent, and other wildlife waste. Pet waste, according to the report, enters the watershed through storm drains after it is deposited on sidewalks, parking lots, or other similar surfaces. Regarding dumpster leachate, board staff wrote that dumpsters may contain animal waste from wildlife and domestic animals scavenging through dumpsters, аs well as from humans discarding yard and pet waste into uncovered and/or leaky trash receptacles. Rainwater then carries FIB from these receptacles into storm drains.
“Homeless person/encampments discharge” ranked as the second highest source of FIB contamination. Staff observed homeless encampments at Salsipuedes Creek and human waste on the banks of the creek and determined that it was “highly likely” that this waste reached surface waters.
The third most significant source of FIB was “pet waste” from sources other than storm water discharges. Staff observed people walking dogs along the Salsipuedes Creek levee and a broken, rusted dispenser that once provided plastic bags for dog walkers to collect pet waste. Since staff had seen people fail to collect this waste in other watersheds, staff opined the same was happening at Salsipuedes Creek.
“Farm animal livestock discharges,” related to local agricultural operations, actually ranked fourth behind the aforementioned sources. Staff wrote that there is evidence from other watersheds indicating that FIB from horses and livestock in close proximity to water bodies is the source of FIB contamination. Consequently, “[s]taff determined that FIB from these livestock operations likely contributed to the exceedance of water quality objectives” in Salsipuedes Creek. The Fairground was lumped into this section of the report. We discuss the references made to the Fairground in the report, post.
Ranking fifth was septic system failures. One area where this occurred was the Delaney community, which is adjacent to Salsipuedes Creek. “Staff concluded that onsite wastewater systems in the Delaney community were a likely source of FIB contributing to water quality impairment in Salsipuedes Creek.” The community is “on soil with very slow рermeability and in which septic take leach fields do not function properly.” Also, the community slopes toward the creek.
As for the Fairground, which was lumped into the category ranked as the fourth highest likely contributor with other agricultural operations, appellants cite the fact that staff wrote that they “did not see management practices in place that would keep runoff from the manure area from entering surface waters.” Yet, staff did not visit when there was a livestock event going on and they only saw one horse on the premises when they were there. Because there were no events underway, staff had no occasion to see the MMP in play. And, as the trial court noted, the report does not even indicate staff had an awareness of the Fairground practices for managing manure when hosting events. Further, the report contained no water sampling results indicating discharges or runoff from the Fairground actually contributed fecal material to Salsipuedes Creek. Moreover, staff did not even report seeing manure onsite. The Regional Water Board report does not establish that the project will have a significant environmental effect on the creek.
Indeed, the evidence in the record suggests quite the opposite. In December 2010, the Fairground retained an outside vender to take samples as part of the Fairground’s voluntary stream monitoring program. Samples were taken “to establish a preliminary set of water quality data focused primarily with equestrian activities and manure management.” Samples were taken upstream where Salsipuedes Creek enters the Fairground and downstream at a location where the creek flows out of the Fairground. The first samples, taken December 2, 2010, showed the E. coli concentration upstream was 920.8 MPN(most probable number)/100 mL (milliliters) while the concentration downstream was 547.5 MPN/100 mL. Samples taken on March 18, 2011, five days after a different rodeo event took place at the Fairground (which apparently was not challenged by appellants), showed the E. coli concentration at the upstream location to be 3,800 MPN/100 mL and the concentration at the downstream location to be 1,700 MPN/100 mL. Thus, as reported in the District’s board of directors meeting on March 22, 2011, “The water sample testing of the storm water run-off in Salsipuedes Creek after the latest storm shows that the water leaving the Fairground[] is actually cleaner than where it comes onto the Fairground[].” At the April 26, 2011, District board meeting, the Fairground manager reported to the board that samples taken the week before the meeting, after another equestrian event at the Fairground, “showed that the water is cleaner when it leaves [the Fairground] than where it enters.” The sample taken from the upstream location showed an E. coli concentration of 999,999 MPN/100 mL and the sample taken downstream from the Fairground showed an E. coli concentration of 151.5 MPN/100 mL. While there is no evidence in the record explaining any of these results, the
Lastly, we note that appellants’ contamination risk argument is grounded on storm water runoff transporting manure from the livestock areas into the creek. But the record before us indicates that even the potential for any environmental effect is far less than significant based on this theory because the average precipitation in the area on October 1 and 2, the dates when the rodeo project was scheduled, is less than two-hundredths of an inch.
We conclude that appellants have failed to establish unusual circumstances bаsed on substantial evidence that the project will have a significant effect on Salsipuedes Creek.
3. Conclusion
Because appellants have failed to establish the unusual circumstances prong of the unusual circumstance exception under either Berkeley Hillside alternative, we conclude that the exception does not apply to preclude application of the Class 23 exemption for normal operations of public gathering facilities.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (
Mauro, Acting P. J., and Duarte, J., concurred.