Christward Ministry v. County of San Diego

• Decision Date: 20 January 1993
• Docket Number: No. D015916,D015916
• Citation: 13 Cal.App.4th 31,16 Cal.Rptr.2d 435
• Court: California Court of Appeals Court of Appeals
• Parties: CHRISTWARD MINISTRY, a nonprofit corporation, Petitioner and Appellant, v. COUNTY OF SAN DIEGO et al., Respondents; North County Resource Recovery Associates, Intervener and Respondent.

Page 435

16 Cal.Rptr.2d 435

13 Cal.App.4th 31

CHRISTWARD MINISTRY, a nonprofit corporation, Petitioner and Appellant, v. COUNTY OF SAN DIEGO et al., Respondents;

North County Resource Recovery Associates, Intervener and Respondent.

No. D015916.

Court of Appeal, Fourth District, Division 1, California.

Jan. 20, 1993.

Gray, Cary, Ames & Frye and Michael M. Hogan, San Diego, for plaintiff and appellant.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy, and Mark C. Mead, San Diego, for defendants and respondents.

Pillsbury, Madison & Sutro, Ronald E. Van Buskirk, Walter R. Allan, Sharon M. Solomon and David S. Winton, San Francisco, for intervener and respondent.

TODD, Acting Presiding Justice.

Christward Ministry (Christward), a nonprofit corporation owning 640 acres of land located to the east of the San Marcos Landfill (Landfill), appeals a judgment entered upon Christward's petition for a writ of mandate challenging the adequacy of an Environmental Impact Report (EIR) prepared by the County of San Diego (County) in connection with a planned vertical and horizontal expansion of the Landfill. The trial court granted the petition in some respects and Christward appeals only from portions of the judgment (a) finding the EIR was adequate with respect to the project description, its cumulative impact analysis and its analysis of the impacts on established religious practices in the area; (2) finding the mitigation monitoring plan needed only to identify who is responsible for its implementation; and (3) denying attorney fees to Christward.

Finding Christward's contentions and arguments do not present a basis for reversal, we affirm.

FACTS

On Christward's 640 acres located approximately 1.6 miles to the east of the eastern boundary of the Landfill, Christward operates Questhaven Retreat. Christward's President, Stephen Isaac, describes Questhaven as a "wilderness sanctuary for the experience of God-in-nature," a key element of which "is the uplift of the panoramic view offered to the visitor or retreatant." According to Isaac, the retreat has a most frequented nature trail leading to a large cross on a ridge at a 940-foot elevation and then a descending westerly trail overlooking the Landfill and along which "our finest and most awe-inspiring views of the Pacific Ocean are to be seen."

The proposed expansion of County's Landfill involves raising the current elevation of the site's surface by 200 feet to a height of 950 feet above mean sea level (msl) as well as increasing the site's horizontal dimensions both to the north and to the south. When County's Board of Supervisors (Board) accepted and certified that the EIR for the Landfill expansion complies with the California Environmental Quality Act (CEQA) (Pub.Resources Code, § 21000 et seq.) ¹ it directed the Chief Administrative Officer (CAO), among other North County Resource Recovery Associates (NCRRA) is a privately owned joint venture of two California corporations, which intervened in this action and has filed a respondent's brief on this appeal. Since 1982, NCRRA has been under contract with the County to design, construct, own and operate a resource recovery and recycling facility on the western 15 acres of the Landfill site in order to provide solid waste disposal service to the County. NCRRA had pending amendments to its contract with the County and a connected Supplemental EIR, which could be adversely affected by a decision in favor of Christward.

things, to return to the Board within a year of the Landfill reaching 850 feet for a policy decision on whether the County would go over the 850-foot height, and not to exceed that height until action by the Board. The Board also directed that at the time the matter of upward expansion is brought back it would again consider the question of closure of the Landfill if there is another landfill in operation in North San Diego County (North County) at that time.

County owns and operates the Landfill under a use permit from the City of San Marcos. The Landfill serves the cities and unincorporated area in the northwest part of San Diego County. It has been the only operating landfill in North County since 1985 and is nearing capacity. A new landfill in North County will not be opened before 1994. The final EIR for the project in question states that without this expansion the waste generated in the San Marcos service area after 1991 would have to be disposed of outside the area until a new North County landfill is operating. Additional emissions into the air from vehicles hauling trash to either of the two other landfill sites in the county would triple or quadruple, depending on which of the sites is used. Hauling costs would also increase.

With the expansion the Landfill would increase its remaining capacity by approximately 8 million tons, from 2.8 million tons (4.65 million cubic yards) to 10.84 million tons (18.06 million cubic yards). A reduction of the height of the proposed expansion from 950 feet to 850 feet would reduce its capacity to 4.8 million tons, down 3.2 million tons, and would cause the Landfill to reach capacity in seven years, rather than eleven years.

On June 12, 1990, the County completed a draft EIR for the proposed Landfill expansion, after which the EIR was circulated for review and comment. The final EIR, including comments of concerned citizens and experts, responses to the comments, and revisions of the draft EIR, was completed October 1, 1990. The EIR found the expansion will cause significant adverse environmental effects on the project area's geology, hydrology, biological resources, transportation and circulation, air quality, land use, aesthetics, visual resources, acoustics and fire protection.

The County held public hearings on October 23, and November 13, 1990. After the last hearing, the County certified the EIR as complying with CEQA, adopted mitigation measures, approved a mitigation monitoring plan and directed staff to acquire additional surrounding properties to increase the size of the buffer zone. The County also directed the CAO to report back within a year of when the expansion would reach the 850-foot above msl elevation at which time it would determine whether to go ahead with the expansion to 950 feet and also consider whether to close the Landfill if there were another North County landfill in operation at the time. On the same date, the County filed a notice of determination (§ 21152) stating its determinations the project will have a significant effect on the environment; an EIR was prepared for the project pursuant to CEQA; mitigation measures were made a condition of approval of the project; and a statement of overriding considerations was adopted for the project.

On December 13, 1990, Christward commenced this proceeding in mandate and, alternatively, for an injunction. After a hearing in July 1991, the trial court granted the petition in part, finding "the significant defect in this EIR is the failure to adequately address the issue of water quality," and that the mitigation monitoring With respect to Christward's contentions concerning the project description, the court stated in part:

plan accompanying the EIR is deficient in failing to contain information "which would assure the decision makers that a mitigation program would be carried out successfully."

"The CEQA Guidelines at Section 15130 require that the EIR:

"1) Have an accurate project description; and

"2) Consider the cumulative impacts of other related projects.

"Neither CEQA nor City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438 require that a single EIR be prepared an[d] include all of the proposed North County trash projects. Although this EIR discusses other trash projects in the North County (A.R. 696-703), it does not contain an assessment of the cumulative impacts of this project taken together with those other projects.

"Although a County wide EIR is not required, this EIR should arguably have taken into account what effect, if any, the other solid waste projects will have on this expansion."

With respect to Christward's contention the EIR was deficient because it contained no reference to the potential significant impact of the proposed expansion on Christward's use of its property as a religious retreat, the court pointed out that Appendix G of the Guidelines, in subparagraph (w), provides that a project will have significant effect on the environment if it conflicts with established religious uses in the area. The court found that the specific religious practices of Christward were not identified for the County by Christward in the preparation of the EIR; Christward only expressed a concern for obstruction of its panoramic view of the Pacific Ocean by the vertical expansion of the Landfill; the EIR did address the view obstruction and found the impact would be significant and not mitigable; and the County adopted a statement of overriding considerations for this impact. The court held it was incumbent on Christward, during the immediate environmental review process rather than based on presumed knowledge from previous lawsuits, "to specifically identify for the County which of [its] religious practices would be impacted by this expansion. The County could then have made the appropriate analysis."

The court entered a judgment based on these and other findings. The County reanalyzed the water impacts and prepared a supplemental EIR, along with providing additional information to correct the defect in the mitigation monitoring program by identifying who is responsible for ensuring that the County implements each mitigation measure. In December 1991, the County filed its return to the peremptory writ describing its compliance with the judgment.

After the judgment was entered in October 1991, Christward filed a notice of motion for attorney fees under Code of Civil Procedure section 1021.5. The trial court denied the motion and...