LATINOS UNIDOS DE NAPA, Plaintiff and Appellant, v. CITY OF NAPA et al., Defendants and Respondents.
No. A134959
First Dist., Div. One.
Oct. 10, 2013.
221 Cal. App. 4th 192
Law Offices of David Grabill, David Grabill; Law Office of Amber Kemble and Amber L. Kemble for Plaintiff and Appellant.
Michael Barrett, City Attorney; Jarvis, Fay, Doporto & Gibson and Rick W. Jarvis for Defendant and Respondent City of Napa.
OPINION
DONDERO, J.—Affordable housing advocates Latinos Unidos de Napa (plaintiff) filed a petition for writ of mandate against the City of Napa (City), its city manager, and its community development director seeking to set aside the City‘s approval of revisions to the housing element of its general plan, and related general plan and zoning amendments (the Project), on the ground that an environmental impact report (EIR) for the Project is required. The City had concluded the Project would not result in any new significant environmental effects that were not identified and mitigated in its 1998 General Plan Program EIR, and filed a notice of determination to that effect. After the trial court erroneously dismissed plaintiff‘s petition on statute of limitations grounds, we reversed the judgment in Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4th 1154 [127 Cal.Rptr.3d 469]. The trial court subsequently denied the petition on its merits, agreeing with the City‘s legal analysis and concluding plaintiff had waived its right to challenge the sufficiency of the evidence. We find no error and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Parties
Plaintiff identifies itself as “an unincorporated association which advocates for environmentally sound and legally adequate development рolicies that address the housing needs of all economic segments of the population in the City of Napa and surrounding areas.” The City is the “lead agency” for the subject approvals for the purposes of the California Environmental Quality Act (CEQA) (
II. CEQA
Under CEQA, an EIR must be prepared before a public agency approves any project that may have a significant effect on the environment.
III. The City‘s General Plan
The Planning and Zoning Law (
State law imposes many requirements for housing elements, including a requirement that they be periodically updated pursuant to a statutory schedule. (
The City adopted a comprehensive update of its general plan—entitled Envision Napa 2020—in December 1998 (2020 General Plan). As its name suggests, the 2020 General Plan sets forth the City‘s future plans for development through the year 2020. The 2020 General Plan includes updates to all elements of the City‘s general plan except for the “Housing Element,” which at the time the City anticipated updating in 2001.
Prior to approving the 2020 General Plan, the City prepared, circulated, and ultimately certified a program EIR (1998 Program EIR). The 1998 Program EIR analyzed the environmental impacts of future projected growth within the City through the year 2020, in accordance with the 2020 General Plan, including analysis of environmental impacts relating to land use, transportation, community services and utilities, cultural resources, visual quality, biological resources, geology, soils, seismicity, hydrology, air quality, noise, and public health and safety. The City updated and/or amended its Housing Element in 2001 and in 2005.
In April 2008, the City began the process of again updating its Housing Element, a cоurse of action that resulted in the Project. This process ultimately included 28 public meetings, including community workshops and other opportunities for public input.
On April 20, 2009, City staff prepared an “Initial Study” to analyze the Project.6 The Initial Study identified all changes that the Project would make to the existing housing and land use elements. The Initial Study first summarized the overall policy changes to the Housing Element, including policies to increase housing densities to provide additional housing opportunities, to “maintain and improve neighborhood livability,” to “expand community involvement and outreach,” to “address housing needs and affordability,” and other policy changes to comply with current state requirements.
The Initial Study then further described the specific new actions contemplated by the Project, including (1) changes to the “Land Use Element” to increase the minimum residential densities in seven areas zoned as “mixed use” or “community commercial” from 10 to 40 residential units per acre to 20 to 40 residential units per acre, (2) changes to the Land Use Element to increase the permitted density for eight multifamily sites located in three areas of the City by a total of 88 units, (3) various zoning amendments to comply with current state laws regarding emergency shelters and transitional, supportive, and farm worker housing, (4) zoning amendments to requirе a use permit for conversion of certain types of stores and to provide for “co-housing,” and (5) Land Use Element and zoning amendments to permit single-family detached homes at the same densities of single-family attached homes.
The Initial Study then analyzed the extent to which these changes contemplated by the Project could result in any new or different environmental impacts not already analyzed with respect to the 2020 General Plan, specifically and separately analyzing the issues of aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology and soils, greenhouse gas emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation/traffic, and utilities and service systems. Based on its analysis, the Initial Study concluded that the Project was “within the scope” of the City‘s 1998 Program EIR, such that the Project required no further environmental review.
On June 15, 2009, the City‘s principal planner and public works director prepared a 10-page memorandum response to the two letters, disputing the claims made therein. This memorandum included two and a half pages of analysis from the City Public Works Department explaining why it disagreed with the traffic-related comments in the two letters and found them to be “misleading and inaccurate” insofar as they were based on information that was “incorrect and/or incomplete.”
On June 17, 2009, the City Council adopted detailed findings restating the Initial Study‘s determinations summarized above, including findings that the Project was within the scope of the 1998 Program EIR prepared for the 2020 General Plan, and that it would “not result in any new significant environmental effects that were not identified, evaluated and mitigated through [the 1998 Program EIR].” The council approved the Project, adopting the amendments to the Land Use Element, the updated Housing Element, and, later, approving the various zoning amendments.
V. The Petition for Writ of Mandate
On October 9, 2009, plaintiff filed a first amended petition for writ of mandate challenging the City‘s compliance with CEQA in adopting the updated Housing Element and the related conforming changes.7 As noted above, after the trial court dismissed the action on statute of limitаtions grounds, we reversed the judgment and the case was returned to the trial court.
On February 1, 2012, the trial court issued a tentative ruling denying the petition, finding that the City properly applied section 21166 in determining that the Project was within the scope of the 1998 Program EIR. The court also found plaintiff had waived its substantial evidence challenges because it “failed to set forth in its opening brief all the evidence which might have a bearing on the administrative decision,” and that, even if these challenges were not deemed waived, the City‘s findings were, in fact, supported by substantial evidence.
DISCUSSION
I. Standard of Review
A. General Standard of Review
“The standard of review in an action to set aside an agency determination under CEQA is governed by section 21168 in administrative mandamus proceedings, and section 21168.5 in traditional mandamus actions. The distinction between these two provisions ‘is rarely significant. In either case, the issue before the trial court is whether the agency abused its discretion. Abuse of discretion is shown if (1) the agency has not proceeded in a manner required by law, or (2) the determination is not supported by substantial evidence.’ [Citations.]” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945 [91 Cal.Rptr.2d 66].)
B. “Fair Argument” Versus “Substantial Evidence” Tests
Relying in part on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 [8 Cal.Rptr.2d 473] (Sierra Club), an opinion authored by this court, plaintiff claims the “fair argument” test applies to the City‘s decision to refrain from preparing a new EIR because the Project was not adequately covered or mitigated in the 1998 Program EIR. “The ‘fair argument’ test is derived from section 21151, which requires an EIR on any project which ‘may have a significant effect on the environment.’ That section mandates preparation of an EIR in the first instance ‘whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.’ [Citation.] If there is substantial evidence of such impact, contrary evidence is not adequate to support a decision to dispense with an EIR.” (Id. at p. 1316.) The fair argument standard creates a “low threshold” for requiring an EIR, reflecting a legislative preference for resolving doubts in favor of environmental review. (Id. at pp. 1316-1317.)
The City contends, and the trial court agreed, that the substantial evidence standard of review applies here because the Project falls under section 21166. “[W]hen a court reviews an agency decision under section 21166 not to require a subsequent or supplemental EIR on a project, the traditional, deferential substantial evidence test applies. The court decides only whether the administrative record as a whole demonstrates substantial evidence to
C. Standard of Review Applicable to the City‘s Environmental Review Process Here
As the court in Division Three of our appellate district has observed, “[a]lthough the standards for judicial review of an agency‘s decision under sections 21151 аnd 21166 are well settled, the issue is not so clear with respect to the agency‘s decision about which of these statutes governs the environmental review process. Courts have reached different conclusions about the appropriate level of judicial scrutiny to be applied to an agency‘s determination about whether a project is ‘new,’ such that section 21151 applies, or whether it is a modification of a previously reviewed project, such that section 21166 applies.” (Moss, supra, 162 Cal.App.4th at p. 1051.)
In Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, 1297 [45 Cal.Rptr.3d 306] (Save Our Neighborhood) the Third District Court of Appeal held that this “threshold question” (id. at p. 1301) is a question of law for the court (id. at p. 1297). Subsequently, in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 [64 Cal.Rptr.3d 79] (Mani Brothers), Division Two of the Second District Court of Appeal strongly disagreed with this aspect of Save Our Neighborhood, pаrticularly in cases in which there is a previously certified EIR: “Treating the issue as a question of law, as the court did in Save Our Neighborhood, inappropriately undermines the deference due the agency in administrative matters. That principle of deference is otherwise honored by the substantial evidence test‘s resolution of any ’ “reasonable doubts in favor of the administrative finding and decision.” ’ [Citation.]” (Mani Brothers, supra, at p. 1401.)
In Moss, the appellate court noted these two opposing cases and did not take a direct stand on the issue, finding it unnecessary to do so under the circumstances of that case. (Moss, supra, 162 Cal.App.4th at pp. 1052-1053). However, the court did state in a footnote that it agreed with Mani Brothers
We also observe that the facts of this case are not analogous to the facts at issue in Sierra Club. In Sierra Club, the county had certified a program EIR for a resource management plan that regulated mining. The plan specified lands available for future mining and provided for preservаtion of identified agricultural lands. (Sierra Club, supra, 6 Cal.App.4th at pp. 1313-1314.) Years later, a mining company proposed to amend the EIR to designate for mining a large parcel that had been identified as agricultural in the EIR. (Id. at p. 1314.) We held that the deferential review provided by section 21166 did not apply in this context because the proposed project was not “either the same as or within the scope of” the program described in the EIR, which had expressly exempted the agricultural land from future mining. (Sierra Club, supra, at p. 1321.) In the present case, the most recent Project is the same as, or within the scope of, that which is described in the 1998 Program EIR. Unlike Sierra Club this case does not involve any site-specific plаns or any other actual changes to a designated area.
D. Substantial Evidence Supports the Decision to Proceed Under Section 21166
Plaintiff relies on Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156 [136 Cal.Rptr.3d 351] (County of El Dorado) in arguing that the Project is not covered by the 1998 Program EIR. In County of El Dorado, the county‘s 2004 general plan and attendant EIR required onsite mitigation of the loss of oak woodland habitat, but anticipated the option of allowing developers to pay a conservation fee under an oak woodland management plan instead. (Id. at p. 1165.) Since neither the general plan nor the EIR specified the fee rate or how the collected fees should be usеd to mitigate the impact on oak woodlands, the appellate court held the
Here, the entire Project consists of (1) limited amendments to the Housing Element and the Land Use Element of the 2020 General Plan and (2) relatively minor amendments to the City‘s zoning ordinances. In contrast to the facts in County of El Dorado, no aspect of the Project involves any approval (site specific or otherwise) of any actual development or other activity. To the extent the Project amends the City‘s 2020 General Plan, Guidelines section 15162 clearly applies and explicitly requires additional environmental review only for amendments that represent “[s]ubstantial changes . . . proposed in the project which will require major revisions of the previous EIR. . . .” (Guidelines, § 15162, subd. (a)(1), italics added.) As to the zoning amendments, those amendments merely incorporate the density revisions already made to the Land Usе Element and make other minor changes to comply with current state law. Thus, these changes are “within the scope” of the 1998 Program EIR. (See Guidelines, § 15168, subd. (c)(2) [“If the agency finds that pursuant to [Guidelines] Section 15162, no new effects could occur or no new mitigation measures would be required, the agency can approve [a subsequent] activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required.“].)
Plaintiff primarily relies upon the fact that, while the City modified every other element of its general plan when it adopted the 2020 General Plan in 1998, it did not change the Housing Element at that time because the City had anticipated updating that element in 2001. Thus, plaintiff asserts that the Housing Element revisions were not a part of the 1998 environmental review and planning process. However, while the City did not change the Housing Element at the time it approved the 2020 General Plan, the 1998 Program EIR analyzed the effects of the then existing Housing Element. For example, the project description chapter of the 1998 Program EIR summarized all of the general plan goals from each of the elements, including the Housing Element. Thus, the Housing Element was not excluded from consideration.9 Further, as the City aptly notes, the environmental impacts associated with a community‘s housing element are necessarily addressed in the
land use element. Under
All of the alleged changes resulting from the Project that plaintiff complains will result in significant impacts—primarily the changes in density—are changes that the Project makes to the Land Use Element, not the Housing Element. There is no dispute that the 2020 General Plan as adopted in 1998 included a fully revised and updated Land Use Element, and there thus can be no dispute that this aspect of the Project clearly is a modification to the 2020 General Plan that was аnalyzed in the 1998 Program EIR and therefore is properly analyzed under Guidelines section 15162. Thus, substantial evidence supports the City‘s decision to proceed under
The same standard applies to the amendments to the zoning ordinance: “Once an agency has prepared an EIR, its decision not to prepare a supplemental or subsequent EIR for a later project is reviewed under the deferential substantial evidence standard. [Citations.] ‘This rule applies to determinations regarding whether a new EIR is required following a program-EIR level of review.’ [Citations.]” (Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 610 [36 Cal.Rptr.3d 249], fn. omitted.) Accordingly, we conclude the City properly determined that sections 15162 and 15168, subdivision (c) of the Guidelines applied to its CEQA review of the Project.
II. Plaintiff Has Failed to Demonstrate That the Decision to Refrain from Preparing an EIR Is Unsupported by Substantial Evidence
We review the City‘s conclusion that the Project did not require any further environmental review to determine whether there is substantial evidence to support it. (E.g., Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 110 [56 Cal.Rptr.3d 728] (Citizens for a Megaplex-Free Alameda) [stating that an agency‘s determination concerning whether to prepare EIR under § 21166 is reviewed for substantial evidence].) In reviewing an agency‘s decision not to require additional envirоnmental
As noted above, the Initial Study determined the Project would not create any new or more severe environmental impacts over those analyzed in the 1998 Program EIR. While the Project incrementally raises maximum densities in limited areas of the City, the Initial Study indicates that this will not increase total potential develоpment above what was already analyzed in the 1998 Program EIR. This is largely because “(a) many project approvals have permitted less development than would have been allowed under the applicable 2020 General Plan designations, and (b) the [C]ity‘s rate of growth has been less than anticipated by the Plan‘s 1994 projections.” The City resultingly concluded that the Project would not require any major revisions to the 1998 Program EIR, was “within the scope” of the 2020 General Plan, and required no further environmental review under CEQA. The trial court found this determination to be supported by substantial evidence.
As a threshold matter, the City contends that because plаintiff, in its opening brief on appeal, failed to fairly summarize the evidence in the administrative record supporting the City‘s findings, it has waived its right to challenge those findings. For example, the City states that “instead of addressing the City‘s actual analysis of the impacts of the density changes, [plaintiff] simply asserts that the City did not study it.” The City also observes that plaintiff failed to fairly summarize the City public works director‘s “detailed response” to Smith‘s traffic report, instead falsely asserting Smith‘s “expert” evidence is “undisputed.”11 As noted above, the trial court found plaintiff had waived its right to bring a substantial evidence challenge, though it nevertheless reached the merits of plaintiff‘s substantial evidеnce contentions.
Plaintiff concedes it was the City that provided detailed evidentiary arguments to the trial court, including citing to specific documents as substantial evidence supporting the City‘s findings. Plaintiff essentially admits it made no effort to carry its burden, stating: “[C]entral to [plaintiff‘s]
As our colleagues in Division Five have explained, the petitioner bears the burden of demonstrating that the record does not contain sufficient evidence justifying a contested project approval. “To do so, an appellant must set forth in its brief all the material evidence on the point, not merely its own evidence. [Citation.] A failure to do so is deemed a concession that the evidence supports the findings.” (Citizens for a Megaplex-Free Alameda, supra, 149 Cal.App.4th at pp. 112-113.) The court further stated, ” ‘[I]f the appellants fail to present us with all the relevant evidence, then the appellants cannot carry their burden of showing the evidence was insufficient to support the agency‘s decision because support for that decision may lie in the evidence the appellants ignore.’ [Citation.] This failure to present all relevant evidence on the point ‘is fatal.’ [Citation.] ‘A reviewing court will not independently review the record to make up for appellant‘s failure to carry his burden.’ [Citation.]” (Id. at p. 113.)
In its reply brief, plaintiff contends that it did cite to relevant evidence supporting the City‘s findings and claims it has not waived a substantial evidence challenge. Regardless, we agree with the trial court that substantial evidenсe supports the City‘s decision not to proceed with any additional environmental review. The 1998 Program EIR analyzed among other things the environmental impacts of land use designations pertaining to housing density, including impacts on traffic, air quality, biological resources, population, public services, and other resources. As noted above, the general plan amendments and zoning changes here at issue increase the minimum density of development allowed in certain areas, and allow for 88 potential new units to certain designated locations. Residential density was addressed in the 1998 Program EIR, and the changes made by the Project in narrowing density ranges do not fall outside of the ranges therein discussed.
As to the additional 88 units, the 2020 General Plan anticipated development of slightly more than 300 residential units per year from 1994 to 2020. As of 2009, however, the City had issued about 700 fewer residential building permits for neighboring properties than what was anticipated. In the Initial Study, the City also noted that “many residential projects have developed at less than the maximum than would have been allowed under the
III. Other Challenges
Plaintiff claims the substantial evidence standard of review does not apply because the City “failed to comply with CEQA‘s informational disclosure requirements, such that the decision makers and public could not make a meaningful assessment of potentially significant environmental impacts.” Plaintiff goes on to cite to various alleged deficiencies in the Initial Study that, in essence, amount to an attack on the City‘s decision to refrain from preparing a new EIR.13 However, as previously discussed, the administrative record contains substantial evidence that the revised project will not cause any new significant impacts. In conclusion, we find no abuse of discretion in City‘s approval of the Project.14
The judgment is affirmed.
Margulies, Acting P. J., and Banke, J., concurred.