Cmty. Envtl. Advocates v. City of Grass Valley
| Decision Date | 30 January 2023 |
| Docket Number | C094613 |
| Parties | COMMUNITY ENVIRONMENTAL ADVOCATES et al., Plaintiffs and Appellants, v. CITY OF GRASS VALLEY, Defendant and Respondent; RUSSEL JETER, as Trustee, etc., Respondent; R. JETER FAMILY TRUST, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date 2/28/23
It is ordered that the opinion filed January 30, 2023, be modified as follows:
Delete the last paragraph beginning on page 39 under the heading "DISPOSITION" and insert the following paragraph in its place:
We have concluded that the EIR prepared by the City is an inadequate informational document in that it fails to evaluate adequately the human health effects of residents' exposure to mobile source air pollution. Therefore, we reverse the judgment denying the petition for writ of mandate on this basis, and remand this matter to the superior court with instructions to enter a new judgment granting the petition (in part) and ordering issuance of a peremptory writ of mandate consistent with the requirements of section 21168.9 and this opinion. On remand, the trial court may exercise its discretion to determine whether the severability criteria in subdivision (b) of section 21168.9 are satisfied. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (3).)
This modification changes the judgment.
The petition for rehearing is denied.
The request for publication is denied.
In this action under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), plaintiffs Community Environmental Advocates et al (plaintiffs) challenge the City of Grass Valley's (City) actions certifying an environmental impact report (the EIR) and approving the Dorsey Marketplace development project (project) proposed by Russel Jeter, as trustee of real party in interest, the R. Jeter Family Trust (Jeter Trust).[1] The proposed project is a mixed-use development consisting of approximately 104,000 square feet of commercial uses, 8,500 square feet of office space, and 172 multifamily residential units, located on the site of a former mine in Grass Valley, California.
Plaintiffs contend the EIR prepared in connection with the project did not comply with CEQA because it (1) did not accurately describe the project or its environmental setting; and (2) did not identify, analyze, or discuss adequately the project's impacts related to traffic, air quality, noise water supply, wastewater, hazardous materials, urban decay, protected plant species, and wildfires. Plaintiffs also contend (3) the findings made in support of the EIR's statement of overriding considerations are not supported by substantial evidence; and (4) the required mitigation monitoring and reporting program lacks sufficient enforcement mechanisms to ensure that the adopted mitigation measures will be implemented.
We agree with plaintiffs that the EIR's air quality analysis is deficient because it does not evaluate adequately State Route (SR) 20/49 as a contributor of mobile source pollution and the associated health risks for future project occupants. We reject plaintiffs' remaining arguments. Accordingly, we shall reverse the judgment in part, with instructions to grant the petition for writ of mandate with respect to the EIR's analysis of air quality impacts, and affirm the trial court's order and judgment denying the writ petition in all other respects.
The proposed project is located on 26.8 acres of undeveloped land within the City of Grass Valley. The project site is bordered by SR 20/49 to the west, industrial and commercial uses to the south, and the Grass Valley Terrace Apartments to the east. To the north, separated by Dorsey Drive, are the Springhill Garden Apartments.
The project site is the former location of the Spring Hill Mine, which operated during the late 1800's and intermittently through the 1940's. Abandoned mine features located on the site include excavations, pits, stockpiles of waste rock, and dry tailings ponds. Due to the history of mining, the property has been classified as a "brownfield site," meaning that re-use of the property "may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." (42 U.S.C. § 9601(39)(A).) Investigations of the site have revealed the presence of arsenic, lead, mercury, and other potentially hazardous metals.
From 2003 to 2007, Holdrege &Kull, an engineering and geology consulting firm, performed investigations of the site for prospective purchasers, including, in 2007, a preliminary geotechnical engineering investigation and report.
In 2008, the Jeter Trust purchased the property. The Jeter Trust entered into a "voluntary cleanup agreement" with the California Department of Toxic Substances Control (DTSC) to investigate and remediate hazardous substances at the site.
On behalf of the Jeter Trust, Holdrege &Kull prepared a preliminary endangerment assessment (PEA) report for the DTSC's review and approval. The PEA was based on the understanding that a commercial development was proposed for the site. At the time, neither an EIR nor a tentative map for the project had been submitted to the City.
A human health risk assessment was performed as part of the PEA. The PEA recommended that the mine waste in the former mill area be excavated and removed, and that the mine waste outside the former mill area be consolidated and buried beneath the proposed commercial development. The DTSC approved the PEA in February 2008.
Based on the findings in the PEA, Holdrege &Kull prepared and submitted to the DTSC a draft removal action work plan (RAW). (Health &Saf. Code, § 25323.1.) The purpose of the RAW was to describe procedures for remediating the hazardous environmental conditions at the site. The RAW describes the onsite contamination, the proposed remedial criteria, the plan for achieving remediation, as well as procedures to confirm that the remedial criteria are achieved. The DTSC provided comments on the draft, and a final RAW was submitted to the DTSC in June 2012.
The final RAW identified two areas of concern (AOC's) for remediation. The former mill area was identified as AOC 1, and the remaining mine waste area (generally located to the west of the mill) was identified as AOC 2. The RAW identified two separate strategies for remediation of AOC 1 and AOC 2 based on the results of the human health risk assessment and an evaluation of local background soil concentrations. As recommended in the PEA, the mine waste within AOC 1 would be excavated and removed from the site, and the waste in AOC 2 would be consolidated and buried beneath the proposed development. An estimated 1,700 cubic yards (150 truckloads) of mine waste rock, tailings, and affected soil would be removed from the former mill area and transported to a waste disposal facility. From the remaining waste area, an estimated 64,000 cubic yards of contaminated mine waste and affected soil would be excavated, consolidated, buried on site, covered with 10 feet of clean soil, and then capped with either the foundations of a building or a parking lot. Prior to implementation of the RAW, the DTSC must review and approve the final site development plans showing the onsite placement details.
The RAW requires verification soil sampling after excavation and placement of the mine waste to confirm that the remedial goals are achieved. The RAW also requires a deed restriction to ensure that the mine waste within the onsite placement area is not disturbed in the future.
The DTSC determined that the RAW was "categorically exempt" from CEQA under section 15330 of chapter 3 of division 6 of title 14 of the California Code of Regulations, pertaining to minor cleanup actions. (The regulations found in title 14 of the California Code of Regulations, section 15000 et seq., are hereinafter referred to in this opinion as the "CEQA Guidelines.") The final RAW and a proposed CEQA notice of exemption underwent a 30-day public comment period from August 8, 2013, to September 9, 2013. On November 12, 2013, the DTSC approved the RAW and directed that the notice of exemption and approval of the RAW be published in the local newspaper.
In 2014, the Jeter Trust applied to the City's "Development Review Committee" for conceptual review of a preliminary site plan for a proposed shopping center on the property. The initial proposal was for a 215,250-square-foot commercial retail development.
In late 2015, the Jeter Trust submitted a formal application for the project. The proposed project, as revised, was a mixed-use development consisting of approximately 179,000 square feet of commercial uses with 90 multifamily residential units. Subsequently, the Jeter Trust developed an alternative site plan, further reducing the proposed commercial space to approximately 104,000 square feet, while increasing the multifamily residential to 172 units, and adding 8,500 square feet of office space. The alternative site plan came to be known as "Alternative B," while the original site plan came to be known as "Alternative A."
To comply with CEQA, in March 2019, the City prepared and released for public comment a draft EIR for the project. According to the draft EIR, the objectives for the proposed project included: redeveloping the property to allow for the environmental clean-up of the former mining site; creating a high-quality mixed-use infill...
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