Friends of College of San Mateo Gardens v. San Mateo County Community College District, 050517 CAAPP1, A135892

Docket Nº:A135892
Opinion Judge:Humes, P.J.
Party Name:FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS, Plaintiff and Respondent, v. SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.
Attorney:Counsel for Defendants and Appellants: Eugene Whitlock, San Mateo County Counsel, James G. Moose, Remy Moose Manley LLP, Sabrina V. Teller, Remy Moose Manley LLP, John T. Wheat, Remy Moose Manley LLP Counsel for Plaintiff and Respondent: Susan Brandt-Hawley, Brandt-Hawley Law Group
Judge Panel:We concur: Margulies, J. Dondero, J.
Case Date:May 05, 2017
Court:California Court of Appeals
 
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FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS, Plaintiff and Respondent,

v.

SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.

A135892

California Court of Appeals, First District, First Division

May 5, 2017

San Mateo County Super. Ct. No. CIV 508656 Superior Court Judge Hon. Clifford V. Cretan

Counsel for Defendants and Appellants: Eugene Whitlock, San Mateo County Counsel, James G. Moose, Remy Moose Manley LLP, Sabrina V. Teller, Remy Moose Manley LLP, John T. Wheat, Remy Moose Manley LLP

Counsel for Plaintiff and Respondent: Susan Brandt-Hawley, Brandt-Hawley Law Group

Humes, P.J.

This is a case brought under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 1 § 21000 et seq.) that is before us for a second time. In the first appeal, we affirmed the trial court's ruling that defendant San Mateo County Community College District violated CEQA when it responded to changes in a campus renovation project by issuing an addendum to a mitigated negative declaration. We held that the proposed changes constituted a “new” project not subject to an addendum. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), 2013 WL 5377849.) Our state Supreme Court reversed after concluding that we should not have assessed whether the changes constituted a new project, but should have instead assessed whether CEQA's subsequent review provisions were applicable and, if so, whether the addendum was permissible under them. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 953 (San Mateo Gardens).)

Evaluating the project changes as directed, we now conclude that they amounted to a modified project, meaning CEQA's subsequent review provisions apply. We also conclude that defendants' use of an addendum violated these provisions because there is substantial evidence to support a fair argument that the project changes might have a significant effect on the environment. Accordingly, we again affirm the judgment.

I.

Factual and Procedural Background

A. The Facilities Master Plan, the Mitigated Negative Declaration, and the Addendum.

The following factual background is taken from the Supreme Court's opinion in San Mateo Gardens. Unless otherwise noted, we will use the same defined terms used in that opinion.

“In 2006, [defendants] the San Mateo [County] Community College District and its Board of Trustees (collectively, District) adopted a facilities master plan (Plan) proposing nearly $1 billion in new construction and facilities renovations at the District's three college campuses. At the College of San Mateo (College), the District's Plan included a proposal to demolish certain buildings and renovate others. The buildings slated for renovation included the College's ‘Building 20 complex, ' which includes a small cast-in-place concrete classroom and lab structure, greenhouse, lath house, surrounding garden space, and an interior courtyard.

“In 2006, the District published an initial study and mitigated negative declaration [(MND)] analyzing the physical environmental effects of implementing the Plan's proposed improvements at the College, including the proposed rehabilitation of the Building 20 complex. The MND stated that, with the implementation of certain mitigation measures, the Plan would not have a significant effect on the environment. In 2007, the District certified its initial study and adopted the 2006 MND.

“When the District later failed to obtain funding for the planned Building 20 complex renovations, it re-evaluated the proposed renovation. In May 2011, the District issued a notice of determination, indicating that it would instead demolish, rather than renovate, the ‘complex and replace it with parking lot, accessibility, and landscaping improvements.' The District also proposed to renovate two other buildings, buildings 15 and 17, that had previously been slated for demolition.

“The District concluded a subsequent or supplemental [environmental impact report (EIR)] was not required. It instead addressed the change through an addendum to its 2006 initial study and MND, concluding that ‘the project changes would not result in a new or substantially more severe impact than disclosed in the 2006 [MND]. Therefore, an addendum... is the appropriate CEQA documentation.'

“The newly proposed demolition of the Building 20 complex, and particularly the demolition of the complex's associated gardens, proved controversial. Certain members of the public, as well as a number of College students and faculty, vocally criticized the demolition proposal at public hearings. The District nevertheless approved demolition of the Building 20 complex in accordance with the addendum.

“Plaintiff Friends of the College of San Mateo Gardens [(Friends)] filed suit challenging the approval. The District thereafter rescinded its original addendum and issued a revised addendum in August 2011. The revised addendum reiterated the original addendum's conclusion but bolstered its analysis. On August 24, 2011, after public comment and discussion, the revised addendum was adopted and demolition of the Building 20 complex was reapproved.” (San Mateo Gardens, supra, 1 Cal.5th at pp. 946-947.)

B. This Action.

Friends voluntarily dismissed its initial suit and filed the present action in September 2011 challenging the revised addendum. Friends sought a peremptory writ of mandate ordering the District to set aside its approval of the Building 20 demolition project and to fully comply with CEQA by preparing an EIR and adopting feasible alternatives and mitigation measures. The trial court found that the demolition project was inconsistent with the original plan and that its impacts were not addressed in the 2006 MND. The court granted Friends' petition for a writ of mandate, ordering the District to refrain from taking “further actions adversely affecting the physical environment at the Building 20 Complex pending its full compliance with requirements of CEQA.”

The District appealed, and we affirmed. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist., supra, 2013 WL 5377849, at p. *6.) We concluded as a matter of law that the District's proposal was a new project, subject to CEQA's initial review standards under section 21151, rather than a modified project subject to the subsequent review provisions of section 21166 and section 15162 of the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). (2013 WL 5377849, at pp. *4-5.) Because we concluded that the initial review provisions applied, we held that the addendum was improper and that the District was required to conduct an initial study of the project to determine whether an EIR was required. (2013 WL 5377849, at p. *6.)

The District sought review in the Supreme Court, which reversed. (San Mateo Gardens, supra, 1 Cal.5th at p. 961.) The Supreme Court explained that our approach in assessing whether the proposal amounted to a new project was incorrect and “would inevitably invite arbitrary results” because neither CEQA nor the cases interpreting it contain any standards for determining whether a project qualifies as “new.” (Id. at pp. 950-951.) Instead of resting on whether a project is new “in an abstract sense, ” the “decision to proceed under CEQA's subsequent review provisions must... necessarily rest on a determination-whether implicit or explicit-that the original environmental document retains some informational value.” (Id. at p. 951.) Such an inquiry “is a predominantly factual question... for the agency to answer in the first instance, drawing on its particular expertise.” (Id. at p. 953.) “A court's task on review is then to decide whether the agency's determination is supported by substantial evidence; the court's job ‘ “ ‘is not to weigh conflicting evidence and determine who has the better argument.' ” ' ” (Ibid.) The Court emphasized that “occasions when a...

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