Concerned Citizens of Costa Mesa, Inc. v. 3 Dist. Agricultural Assn.

Decision Date01 December 1986
Citation231 Cal.Rptr. 748,727 P.2d 1029,42 Cal.3d 929
CourtCalifornia Supreme Court
Parties, 727 P.2d 1029 CONCERNED CITIZENS OF COSTA MESA, INC., et al., Plaintiffs and Appellants, v. 32ND DISTRICT AGRICULTURAL ASSOCIATION et al., Defendants and Respondents. L.A. 32144.

Richard L. Spix, Westminister, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Dennis W. Dawson, Deputy Atty. Gen., San Diego, for 32nd Dist. Agr. Assn.

Neil Papiano, Deborah M. Nesset and Iverson, Yoakum, Papiano & Hatch, Los Angeles, for Ned West.

REYNOSO, Justice.

What may a citizens' group do when a stadium is constructed in their neighborhood substantially different than planned? The citizens charge that the changes were made without notice and that they did not know of the changes, and could not through the exercise of reasonable diligence have discovered them, until the first and overly noisy concert took place. On those facts, does the California Environmental Quality Act protect the citizens? We hold that it does.

The California Environmental Quality Act (Pub.Resources Code, § 21000 et seq., hereafter CEQA) 1 provides that a state or local agency must file an environmental impact report (EIR) on any project it intends to carry out or approve that may have a significant effect on the environment. (§§ 21100, 21151.) If substantial changes are proposed in a project that require major revisions of the initial EIR, the agency must prepare a subsequent or supplemental EIR. (§ 21166, subd. (a).) An action may be filed against an agency that proceeds with a project without filing an EIR when one is required by CEQA. Under section 21167, subdivision (a), such an action must be filed within 180 days after commencement of the project.

The precise issue in this case is whether the 180-day limitation period bars a suit if an EIR relating to the project has been filed, but two important steps are not taken: (1) there is no notice to the public that the project is substantially changed and (2) no later EIR is filed to reflect the changes. We conclude that an action challenging noncompliance with CEQA may be filed within 180 days of the time the plaintiff knows or should have known that the project under way differs substantially from the one described in the initial EIR. The facts we discuss below, if proved, would support a determination that the plaintiffs did not know and reasonably could not have known of the substantial difference until the first concert took place.

I.

In 1977, the 32nd District Agricultural Association (district), which constructs, maintains, and operates facilities at the Orange County Fairgrounds, proposed to improve and upgrade the fairgrounds, including the Pacific Amphitheater within the grounds. The district prepared an EIR in connection with the project after a public hearing. Construction of the theater commenced in February 1983, and the first concert at the newly completed theater was held on July 27 of that year.

On January 20, 1984, plaintiffs, a nonprofit corporation whose membership is comprised of some of the approximately 24,000 residents who live near the fairgrounds, and two individuals who also reside nearby, filed suit against the district and Ned West, Inc. (West), the builder and operator of the theater under a contract with the district. Their first cause of action, which is the focus of our inquiry here, alleged that the district violated CEQA by making substantial changes in the theater after the EIR was filed without notification to the public or the filing of a subsequent EIR.

According to the complaint, the EIR described the theater as containing 5,000 fixed seats with additional seating on the grass. It was to be located on six acres of land, and its stage would be directed away from the sensitive residential areas to the north of the fairgrounds. Performing Arts Associates, a group formed specifically for the venture, would manage the theater and market its entertainment to the "affluent people available and willing to attend quality shows such as those presented at the Greek Theatre." The EIR stated that: (1) there was no problem with on-site parking, (2) noise was a major concern of area residents, and (3) mitigation studies would be undertaken early in the planning process to address the concerns of nearby residents. In 1978, the district determined to carry out the theater project, after finding that the EIR was complete and adequately addressed environmental issues.

The complaint alleges that the district then entered into a contract with West in March 1980 that authorized West to make substantial changes in the project described by the EIR. Instead of 5,000 fixed seats, 7,000 were authorized, in addition to 8,000 seats on the lawn. The site was increased from six to ten acres, and the stage was moved to face the single-family residences north of the fairgrounds. West or its affiliate would manage the theater, rather than Performing Arts Associates. Noise mitigation measures contemplated by the EIR were not taken and the noise level exceeded that allowed by county law. Plaintiffs had no notice of the changes and were not afforded a hearing to comment on them.

The complaint asserts that the district had a duty to prepare a subsequent or supplemental EIR, as required by section 21166, subdivision (a), because substantial changes in the project were made after the EIR was filed, which would have effects on the environment not considered in the original report. Plaintiffs claim they did not know and could not have known through the exercise of reasonable diligence that a cause of action accrued to them until within 180 days of the date they filed their complaint because they had neither actual nor constructive notice of the changes made in the project by the contract between the district and West, and the changes were not made known at a public hearing.

Plaintiffs sought both declaratory and injunctive relief. 2 Defendants demurred to the complaint, claiming that the cause of action was barred by the limitation period in subdivision (a) of section 21167 because it was not filed within 180 days after construction of the theater commenced, which is the latest date for filing a challenge for failure to comply with CEQA under that provision. 3 Plaintiffs stated that they were unable to amend and stipulated that the court should sustain the demurrers without leave to amend and dismiss the complaint. The court did so, and this appeal followed. The Court of Appeal affirmed the trial court's ruling on this issue.

II.

We begin with a summary of some of the relevant statutory provisions. CEQA describes an EIR as "an informational document which ... shall be considered by every public agency prior to its approval or disapproval of a project." (§ 21061.) The purpose of an EIR is to provide the public and public agencies "with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." (Ibid.)

We have indicated that CEQA's fundamental objective is "to ensure 'that environmental considerations play a significant role in governmental decision-making.' " (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 797, 187 Cal.Rptr. 398, 654 P.2d 168.) To facilitate CEQA's informational role, the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions. This requirement enables the decision-makers and the public to make an "independent, reasoned judgment" about a proposed project. (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831, 173 Cal.Rptr. 602; People v. County of Kern (1974) 39 Cal.App.3d 830, 841, 115 Cal.Rptr. 67 (requirement of detail in EIR " 'helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.' "); see also Cal.Admin.Code, tit. 14, § 15151.)

"Public participation is an essential part of the CEQA process" (Cal.Admin.Code, tit. 14, § 15201), and several CEQA provisions recognize its importance. For example, an agency must provide public notice that it is preparing an EIR or a negative declaration (§ 21064) before approving a project, although individuals need not be given notice unless they have previously requested it. (§ 21092.) 4 In addition, the state CEQA Guidelines provide for a period of public review for a draft EIR or for a negative declaration. (Cal.Admin.Code, tit. 14, §§ 15073, 15087.) 5 Under section 21166, subdivision (a), once an agency has prepared an EIR, no subsequent EIR is required unless substantial changes are proposed in a project that will require major changes in the EIR. If a subsequent or supplemental EIR is necessary, however, the state CEQA Guidelines require that the later EIR receive the same circulation and review as the initial EIR. (Cal.Admin.Code, tit. 14, §§ 15162, 15163; see Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 362, fn. 7, 363, 212 Cal.Rptr. 127; Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 822, 176 Cal.Rptr. 342.)

As one commentator has noted, "the 'privileged position' that members of the public hold in the CEQA process ... is based on a belief that citizens can make important contributions to environmental protection and on notions of democratic decision-making...." (Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C.Davis L.Rev. 197, 215-216.) "CEQA compels an interactive process of assessment of environmental impacts and responsive project modification which must be genuine. It must be open to the public, premised upon a full and meaningful disclosure of the scope, purposes, and effect of a...

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