PARKER SHATTUCK NEIGHBORS et al., Plaintiffs and Appellants, v. BERKELEY CITY COUNCIL et al., Defendants and Respondents; CITYCENTRIC INVESTMENTS, LLC et al., Real Parties in Interest and Respondents.
No. A136873
Court of Appeal, First District, Division Four, California
Nov. 7, 2013
222 Cal. App. 4th 768
Lozeau | Drury, Christina M. Caro, Michael R. Lozeau and Richard Toshiyuki Drury for Plaintffs and Appellants.
Zach Cowan, City Attorney, and Laura Nicole McKinney, Deputy City Attorney, for Defendants and Respondents.
Cox, Castle & Nicholson, Andrew Biel Sabey and Linda C. Klein for Real Parties in Interest and Respondents.
HUMES, J.—This action was brought under the California Environmental Quality Act (CEQA)1 to challenge a proposed mixed-use commercial and residential project approved by the City of Berkeley. Appellants are Parker Shattuck Neighbors and two individuals (collectively Parker Shattuck),2 who contend the City violated CEQA by approving the project without an environmental impact report (EIR). Parker Shattuck petitioned for a writ of mandate, maintaining that an EIR was required because preexisting contamination on the site poses health risks to the project‘s construction workers and future residents. We affirm the trial court‘s denial of the writ because Parker Shattuck has failed to identify substantial evidence supporting a fair argument that there may be a significant effect on the environment because of these potential health risks.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Parker Place Project is proposed by CityCentric Investments, LLC, and Parker Place Group, LLC, and was approved by the Berkeley City Council.3 When finished, it will consist of three buildings on what are currently three different parcels. A five-story mixed-use building with an underground parking garage will be built at 2600 Shattuck Avenue, another five-story mixed-use building will be built at 2598 Shattuck Avenue, and a three-story residential building will be built at 2037 Parker Street. All told, the project will include 155 residential units and over 20,000 square feet of commercial space.
The three parcels are currently occupied by a car dealership, Berkeley Honda. The showroom, offices, and service garage are located at 2600 Shattuck Avenue, and a sales lot is located at 2598 Shattuck Avenue and 2037 Parker Street. Since 1923, 2600 Shattuck Avenue has been the site of a car dealership and service garage, and from at least 1922 to 1960, 2598 Shattuck Avenue was the site of a service station.
These recommendations were accepted, and the results were described in the phase II report issued in March 2006. The ground-penetrating-radar study located a suspected underground storage tank under the sidewalk next to 2600 Shattuck Avenue and recommended its removal. It also identified a concrete pad at 2598 Shattuck Avenue that might conceal an underground storage tank. The ground-contamination investigation collected soil samples from 20 borings near areas of potential contamination, and water samples were collected where the borings encountered groundwater. Various volatile organic compounds (VOCs) were detected in two soil samples and a water sample, but they did not “exceed the San Francisco Regional Water Quality Control Board... Environmental Screening Levels..., or there are no [environmental screening levels] established for the contaminant.” The report recommended additional soil and water sampling in other areas of concern, including under the concrete pad to determine if there was petroleum in the soil and thus whether an underground storage tank might be there.
This recommendation was accepted, and the results were announced in a supplemental phase II report. Although petroleum hydrocarbons, arsenic, and cobalt were detected in amounts exceeding San Francisco Regional Water Quality Control Board (Regional Board) environmental screening levels for commercial/industrial land use, the report noted that the hydrocarbon contamination was “not likely” to “require cleanup” and that the arsenic and cobalt were probably “naturally occurring.” No contaminants were detected in amounts exceeding environmental screening levels for groundwater that was not a potential source of drinking water. The supplemental report also determined that there was no underground storage tank or soil contamination under the concrete pad.
In January 2007, the Regional Board issued a closure letter finding that no further corrective action related to the petroleum contamination was necessary at the project‘s site. A printout of a State Water Resources Control Board Web site identifying sites on the Cortese list showed that the project‘s site remained on the list but was given the status of “case closed” the day after the Regional Board‘s closure letter was issued.
Almost two years later, in December 2008, CityCentric applied to begin constructing the project. A use permit was finally approved in 2010 after the City determined that CEQA did not apply because the project fell under a regulatory exemption for urban “In-Fill Development Projects.”4
Parker Shattuck brought a writ of mandate to challenge the City‘s approval of the project in Parker Shattuck Neighbors v. Berkeley City Council (Super. Ct. Alameda County, 2011, No. RG10544097). Although the trial court rejected Parker Shattuck‘s various arguments under CEQA, finding they were not raised at the administrative level, it granted the writ and ordered the City to vacate approval of the project after it found that the City had allowed the project to be modified without first holding a public hearing. The City vacated the project‘s approval in October 2011.
In the second round of administrative proceedings, the City assumed the CEQA exemption for urban in-fill projects (Guidelines, § 15332) was inapplicable. On November 1, 2011, the City released for public comment a proposed mitigated negative declaration (MND), which incorporated the initial study.
The proposed MND found that the project would potentially affect several environmental factors, including the category entitled “Hazards & Hazardous
Parker Shattuck submitted comments on the proposed MND, including comments from Matthew Hagemann, a hydrogeologist and expert on air quality. Relying on Hagemann‘s comments, Parker Shattuck argued that an EIR was required because the MND‘s mitigation measures failed adequately to address the health threat of the toxic soil contamination to construction workers and future residents of the project. A week later, Parker Shattuck submitted additional comments, which primarily discussed comments on the MND submitted by the East Bay Municipal Utility District (EBMUD). EBMUD‘s letter informed the City that the utilities district “[would] not inspect, install or maintain pipeline or services” in soil or groundwater that was contaminated above certain levels and until the district was able to review contamination data and remediation plans. Parker Shattuck argued that these comments further demonstrated that the MND‘s mitigation measures were insufficient.
The Berkeley Zoning Adjustments Board held a public hearing on December 8 and adopted the MND. Parker Shattuck appealed the decision to the Berkeley City Council. In January 2012, the Berkeley City Council approved the project.
Parker Shattuck filed this lawsuit in February 2012, seeking a writ of mandate to compel the City to set aside approval of the MND and project and to prepare an EIR. The lawsuit also sought injunctive relief, costs, and attorney fees. Although during the administrative proceedings Parker Shattuck had raised other concerns about the project, such as the potential for
The trial court issued a tentative order denying the petition, and a hearing occurred over two days in July 2012. The court then issued an order and proposed statement of decision denying the petition and entered judgment. Parker Shattuck timely appealed.
II.
DISCUSSION
A. The Background of CEQA.
CEQA reflects the California state policy that “the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions.” (
If the project is not exempt from CEQA, the next step is to conduct an initial study. (Davidon Homes, supra, 54 Cal.App.4th at p. 113.) The initial study determines whether there is “substantial evidence that the project may have a significant effect on the environment.” (Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1101 [19 Cal.Rptr.3d 469] (Architectural Heritage).) If there is no such evidence, “CEQA excuses the preparation of an EIR and allows the use of a negative declaration....” (Ibid.) If there is such evidence, “but revisions in the project plans ‘would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur’ and there is no substantial evidence that the project as revised may have a significant effect on the environment, [an MND] may be used.” (Ibid.)
B. The Applicable Legal Standards.
The lead agency must prepare an EIR “whenever substantial evidence supports a fair argument that a proposed project ‘may have a significant effect on the environment.‘” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at p. 1123.) “The fair argument standard is a ‘low threshold’ test for requiring the preparation of an EIR.” (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928 [21 Cal.Rptr.3d 791].) “[F]acts, reasonable assumptions predicated upon facts, and expert opinion supported by facts” all constitute “substantial evidence” of a significant effect on the environment, and “argument, speculation, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous, or evidence that is not credible” do not. (Guidelines, § 15064, subd. (f)(5).) As long as there is substantial evidence of a potential significant environmental effect, “contrary evidence is not adequate to support a decision to dispense with an EIR.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [8 Cal.Rptr.2d 473].)
An agency‘s decision under CEQA is reviewed for abuse of discretion. (
When reviewing the agency‘s determination not to prepare an EIR, we “determine whether substantial evidence supported the agency‘s conclusion as to whether the prescribed ‘fair argument’ could be made.” (Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002 [165 Cal.Rptr. 514].) ” ‘The sufficiency of the evidence to support a fair argument’ ” is a question of law. (Sierra Club v. County of Sonoma, supra, 6 Cal.App.4th at p. 1318.) When determining whether sufficient evidence exists to support a
We limit our review to the administrative record because the agency‘s determination that an MND is appropriate depends on “the absence of ‘substantial evidence in light of the whole record before the... agency that the project, as revised, may have a significant effect on the environment.’ ” (Architectural Heritage, supra, 122 Cal.App.4th at p. 1111, italics omitted; see
C. Parker Shattuck Has Failed to Identify Substantial Evidence Supporting a Fair Argument That the Project‘s Disturbance of Contaminated Soil May Have a Significant Effect on the Environment.
Parker Shattuck contends that the City is required to prepare an EIR because the MND contains inadequate measures to mitigate environmental effects that will be caused by “excavating and disturbing toxic soil.” It argues that the project will have a significant effect on the environment by threatening the health of construction workers and future residents. We conclude that Parker Shattuck has failed to identify substantial evidence supporting a fair argument that potential health risks to workers and future residents might constitute a significant environmental impact. Accordingly, we need not consider whether the MND contained adequate mitigation measures because such “measures are not required for effects which are not found to be significant.” (Guidelines, § 15126.4, subd. (a)(3).)5
” ‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in the environment.” (
1. The disturbance of contaminated soil can be a physical change in the environment.
Parker Shattuck argues that disturbing contaminated soil can be a “physical change” in the environment. We agree. (Guidelines, § 15358, subd. (b); Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 332 [127 Cal.Rptr.3d 435] (Citizens) [in a case involving soil contamination beneath a former gas station, the court held that “it [could] be fairly argued that [the project at issue] may have a significant environmental impact by disturbing contaminated soils“]; see Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 635, 638–640 [10 Cal.Rptr.3d 560] (Yosemite Community College) [project to remove a shooting range that would not increase the lead contamination already present due to bullets might nevertheless “spread[] [that] contamination, which is a direct physical change in the environment,” through increased vehicle and foot traffic and donations of portion of range to another site].)
The City argues that this case is not about the project affecting the environment, but is instead about the environment (i.e., any contaminated soil or groundwater at the site) affecting the project. In support of its position, it relies on several cases holding that the environment‘s impact on a project is not a “significant effect on the environment.” But these decisions, with one exception, are not directly applicable here because the projects in those cases, unlike the project here, did not involve a physical change in the environment.6
In one of the cases, Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 [38 Cal.Rptr.2d 93] (Baird), the court considered whether an EIR was required for a planned addiction treatment facility to be built on and adjacent to contaminated sites. (Id. at p. 1466.) The plaintiffs contended
This holding was premised on the finding that the project would not cause a physical change related to the contamination. The court specifically rejected the plaintiffs’ contention “that the construction of the facility ‘may expose or exacerbate the existing ground contamination’ ” because all the contamination sources were several hundred feet away from the building site, and there was no evidence that the project would disturb contaminated soil. (Baird, supra, 32 Cal.App.4th at p. 1468, fn. 1.) The observation implies that the court would have considered the disturbance of contaminated soil an effect on the environment, further supporting our conclusion that disturbing contaminated soil is a physical change that, under the right circumstances, may cause an environmental effect that is cognizable under CEQA.
In another case relied upon by the City, South Orange County, the plaintiff operated a sewage treatment plant next to the site of a proposed development and contended that an EIR was necessary to consider the effect of the plant‘s odors on the development. (South Orange County, supra, 196 Cal.App.4th at pp. 1608, 1613.) The court held that CEQA could not be used “to defend the proposed project (the future residences) from a purportedly adverse existing environment (smells from the sewage treatment plant).” (South Orange County, at p. 1614.) The court concluded that an EIR was unnecessary because the plaintiff had failed to identify any relevant effect on the environment. (Id. at p. 1616.) And the same result was reached in yet another case relied upon by the City, Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455 [134 Cal.Rptr.3d 194] (Ballona), where the court held that an EIR did not need to address impacts relating to “sea level rise resulting from global climate change” on a proposed mixed-use development where the project itself would not cause sea levels to rise. (Id. at pp. 462-464, 475.) Thus, neither Baird, South Orange County, nor Ballona involved a project that would itself physically change the environment. By contrast, Parker Shattuck has identified an aspect of the project—the disturbance of contaminated soils—that will physically change the environment.
We also do not accept Parker Shattuck‘s argument that an EIR is necessarily required for every project proposed to be built on a site that is mentioned on the Cortese list. In arguing that soil contamination at a project site is sufficient to trigger an EIR, Parker Shattuck cites CEQA‘s exception to categorical exemption for projects to be built on sites included on the Cortese list, and the legislative history of Assembly Bill No. 869 (1991–1992 Reg. Sess.), the bill adding that exception. (
We next turn to whether the project will have a significant effect on the environment as a result of the potential health risks to people. We conclude that the health risks to workers and residents identified by petitioners do not constitute “substantial adverse effects on human beings” or otherwise create a fair argument that the disturbance of contaminated soil may have a significant effect on the environment.
To begin with, and while we need not and do not decide the issue here, we note that it is far from clear that adverse effects confined only to the people who build or reside in a project can ever suffice to render significant the effects of a physical change. In general, CEQA does not regulate environmental changes that do not affect the public at large: “the question is whether a project [would] affect the environment of persons in general, not whether a project [would] affect particular persons.”8 (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492 [14 Cal.Rptr.3d 308]; accord, Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392, 404 [37 Cal.Rptr.3d 470].)
For example, in Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188 [129 Cal.Rptr. 739], the plaintiff argued that the demolition of living structures on a beach would adversely affect humans, and thus constitute a significant effect on the environment requiring an EIR, because “the planned demolition [would] evict people from their homes (with consequent adverse effect on those people) ....” (Id. at pp. 191, 194.) The court held that the “[a]dverse effect on persons evicted from Topanga Beach cannot alone invoke the requirements of CEQA, for all government activity has some direct or indirect adverse effect on some persons.” (Id. at p. 195.) “The issue [was] not whether demolition of structures [would] adversely affect particular persons but whether demolition
We find it significant that in the case before us the only people identified by Parker Shattuck who potentially will be impacted by the project are those who will work on or live at the project site. In Long Beach, the court considered the argument that an EIR addressing the proposed construction of a high school to serve over 1,800 students was insufficient because it failed to discuss the project‘s “cumulative impacts on air quality and traffic ‘and, in turn, on staff and student health’ ” in light of already-existing emissions from nearby freeways.9 (Long Beach, supra, 176 Cal.App.4th at pp. 895, 905.) The court observed that “generally, ‘[t]he purpose of an [EIR] is to identify the significant effects on the environment of a project . . .’ [citations], not the impact of the environment on the project, such as the school‘s students and staff.” (Id. at p. 905, italics omitted.) As a result, the air quality‘s effect on staff and student health was “not the aim of the cumulative impacts analysis,” and the court did not consider the EIR‘s failure to discuss health risks germane to the cumulative impacts issue. (Id. at pp. 905-912.) Long Beach instructs that a physical change caused by a project, even one affecting several hundred people, is not necessarily cognizable under CEQA when the people affected are part of the project. (See Ballona, supra, 201 Cal.App.4th at pp. 473-474 [“identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA‘s legislative purpose nor required by the CEQA statutes” (italics added)].)
We recognize that when a project may cause a physical change to the environment, CEQA requires a consideration whether the change will have a potential impact on people. This is the import of
We also reject Parker Shattuck‘s argument that CEQA requires consideration of the potential impact Parker Shattuck has identified simply because the MND mentioned a consideration of “the [p]roject‘s impacts on the public and construction workers” after a box was checked on a form checklist indicating that the site was on the Cortese list. The form checklist comes from appendix G of the Guidelines, which provides a suggested list of potentially significant impacts to be considered when preparing an initial study. We do not believe the MND establishes that the City conceded that CEQA required consideration of health risks limited to workers and future residents. Furthermore, even if the MND‘s consideration of a potential factor on a form checklist could be construed as some sort of admission, the admission would not offset the weight of authority indicating that an EIR is not required for environmental effects that impact only a limited group of people. (See South Orange County, supra, 196 Cal.App.4th at p. 1616 [“A few questions on a suggested checklist in an appendix to the [G]uidelines do not seem to us to provide a strong enough foundation on which to base a reversal of the entire purpose of CEQA.“].)
Ultimately, and notwithstanding the parties’ extensive briefing on the issue, we need not decide whether the potential effects of a physical change that
Parker Shattuck relies on Hagemann‘s comments in support of its argument that disturbing the contaminated soil will have a significant environmental effect due to the health risk the site‘s contamination poses to workers and future residents.10 His conclusions were based on the levels at the site of 1,2-dichloroethane and benzene, both VOCs, and of total petroleum hydrocarbons.11
1,2-dichloroethane, a potential human carcinogen, was present in one groundwater sample from 2600 Shattuck Avenue at the level of 14 ug/L (micrograms/liter). Hagemann stated that the safe level of this compound in drinking water is 0.5 ug/L, the Regional Board recommends a vapor-intrusion study when the level exceeds 0.5 ug/L, and the United States Environmental Protection Agency recommends such a study when the level exceeds 5 ug/L.12 Benzene, a known human carcinogen, was present in one groundwater sample from 2600 Shattuck Avenue at 9.3 ug/L. Hagemann stated that the safe level of this compound in drinking water is 1 ug/L, the Regional Board recommends a vapor-intrusion study when the level exceeds 1 ug/L, and the United States Environmental Protection Agency recommends such a study when the level exceeds 5 ug/L. Finally, total petroleum hydrocarbons were found in the soil at one boring at 2600 Shattuck Avenue at a level of 1,900 mg/kg (milligrams/kilogram), which exceeds the Regional Board screening level for industrial/commercial use of 1,000 mg/kg.
Hagemann also contended that construction workers may be exposed to the VOCs by inhaling their vapors and to the VOCs and hydrocarbons through dermal contact. Even assuming that the disturbance of contaminated soil would cause these risks, we conclude Hagemann‘s contention still fails to amount to substantial evidence supporting a fair argument of a significant effect on the environment. First, while the levels of the two VOCs exceed screening levels for drinking water and, according to Hagemann, suggested the need for a vapor-intrusion study, the levels do not exceed Regional Board levels for nonpotable water. Hagemann provided no explanation why levels below the Regional Board screening levels might pose health risks where the water will not be drunk. Second, Hagemann did not discuss the significance for human health of exposure to petroleum hydrocarbons or challenge the phase II supplemental report‘s finding that the contamination from the hydrocarbons is not the type that would usually “require cleanup.” Instead, he simply claimed that the level of total petroleum hydrocarbons should lead to further investigation.
We conclude that, even if health risks confined to a project‘s construction workers and future residents could ever trigger CEQA review, substantial evidence was not identified in the record to create a fair argument that the disturbance of contaminated soil may have a significant effect on the environment.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
Reardon, Acting P. J., and Rivera, J., concurred.