Fund for Environmental Defense v. County of Orange

• Decision Date: 11 October 1988
• Docket Number: No. G005607,G005607
• Citation: 252 Cal.Rptr. 79,204 Cal.App.3d 1538
• Court: California Court of Appeals Court of Appeals
• Parties: FUND FOR ENVIRONMENTAL DEFENSE et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents; NICHOLS INSTITUTE REFERENCE LABORATORIES, Real Party in Interest and Respondent.

Page 79

252 Cal.Rptr. 79

204 Cal.App.3d 1538

FUND FOR ENVIRONMENTAL DEFENSE et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents NICHOLS INSTITUTE REFERENCE LABORATORIES, Real Party in Interest and Respondent.

No. G005607.

Court of Appeal, Fourth District, Division 3, California.

Oct. 11, 1988.

Shute, Mihaly & Weinberger and Rachel B. Hooper, San Francisco, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Theodora Berger, Asst. Atty. Gen., and Susan L. Goodkin, Deputy Atty. Gen., as amici curiae on behalf of plaintiffs and appellants.

Adrian Kuyper, County Counsel, and Stefen H. Weiss, Deputy County Counsel, Santa Ana, for defendants and respondents.

Rutan & Tucker and Robert S. Bower, Costa Mesa, for real party in interest and respondent.

OPINION

SCOVILLE, Presiding Justice.

Appellants, Fund for Environmental Defense and Charlotte Clarke (referred to collectively as "Fund"), challenge the Orange County Board of Supervisors' (Board) December 1986 decision to issue a use permit to real party in interest Nichols Institute Reference Laboratories (Nichols) for development of a medical research and laboratory complex on property surrounded by Caspers Wilderness Park.

Nichols originally applied for a use permit on this property in 1980. In October 1981 the Board certified Final EIR 234 (Addended) covering the proposed development and an amendment of the County General Plan to allow for a new zoning category applicable to the Nichols project. ¹ Based on EIR 234, Nichols' use permit application was approved in 1981. In July 1983 the Orange County Zoning Code was amended to add the "Research/Open Space Park District" category and in September 1983 the Nichols site was rezoned under this new designation.

The Nichols site consists of approximately 100 acres located some 9 miles northeast of the City of San Juan Capistrano. The site is bordered on the north by the Ortega Highway (State Route 74) and on the southwest by the Lucas Canyon haul road leading to the Ortega Rock Company quarry. ² In 1981, Caspers Wilderness Park, consisting of some 5,473 acres, was located next to the Nichols site, across the Ortega Highway to the north and west of the property. The largest part of the Nichols site was, in 1981, bordered by land owned by Rancho Mission Viejo Company and used primarily for livestock grazing.

Between 1981 and 1983 Rancho Mission Viejo Company sought county approval of its Rancho Santa Margarita project. As a condition of that approval, the company dedicated more than 2,000 acres of land to the county, the land surrounding three sides of the Nichols site on the east side of Ortega Highway. In 1985 this land was added to Caspers Wilderness Park, increasing the park's size to approximately 7,600 acres. As a result, the Nichols site was transformed from property adjacent to the park to an "inholding" completely surrounded by the park.

In the meantime, Nichols allowed its 1981 use permit to expire. It filed a new application in 1986. The Planning Commission approved the new use permit without requiring preparation of a subsequent or supplemental EIR. The commission relied on EIR 234 and a lengthy addendum to the EIR prepared in connection with submission of the 1986 conditional use permit application.

The decision of the commission was appealed to the Board, and on December 17, 1986, a public hearing was held on the matter. The Board denied the appeal and filed a notice of determination pursuant to Public Resources Code section 21152 ³ on December 17, 1986.

On January 15, 1987, Fund filed a petition for writ of mandate and complaint for injunctive relief claiming: (1) preparation of a subsequent or supplemental EIR pursuant to section 21166 was required in connection with the county's approval of Nichols' 1986 conditional use permit application; (2) the county's findings certifying the EIR and addendum were legally inadequate, and (3) the county's approval of the use permit was invalid because the project is inconsistent with its general plan.

The trial court denied the petition for writ of mandate No request for a statement of decision was made. In its minute order the trial court stated: "The court finds that the County did not abuse its discretion in concluding that these conditions [i.e., substantial changes requiring major revisions in the EIR] did not exist and that no subsequent EIR with its renewed public review process (as opposed to merely an addendum to the EIR, without renewed public review) was required. The court finds that the County proceeded in accordance with law, and that the record contains substantial evidence to support the decision reached."

I Standard of Review

The question whether a subsequent or supplemental EIR is required with respect to a proposed project is governed by section 21166 which provides: "When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available." ⁴

An EIR is required in the first instance whenever a project "may have a significant effect on the environment." ( § 21151.) On the other hand, a subsequent or supplemental EIR is prepared under section 21166 only where it is necessary to explore the environmental ramifications of a substantial change not considered in the original EIR. (Cal.Admin.Code, tit. 14, § 15162, subds. (a)(1) & (2); Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 265, 232 Cal.Rptr. 772.) As was said in Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 at pp. 1073-1074, 230 Cal.Rptr. 413, "[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired ( § 21167, subd. (c)), and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process. Thus, while section 21151 is intended to create a 'low threshold requirement for preparation of an EIR' [citation], [section 21166] indicates a quite different intent, namely, to restrict the powers of agencies 'by prohibiting [them] from requiring a subsequent or supplemental environmental impact report' unless the stated conditions are met. [Citation.]" (Original italics.)

In deciding whether a public agency properly determined a subsequent or supplemental EIR was unnecessary, the standard of review is "whether the record as a whole contains substantial evidence to support a determination that the changes in the project [or its circumstances] were not so 'substantial' as to require 'major' modifications to the EIR." (Fn. omitted.) (Bowman v. City of Petaluma, supra, 185 Cal.App.3d at p. 1075, 230 Cal.Rptr. 413; § 21168.) ⁵ Our task on this appeal is the same as the trial court's. We too must search the administrative record and determine, in light of the whole record, whether there is substantial evidence supporting the agency's determination, and whether the agency " 'abused its discretion by failing to proceed in the manner required by law.' [Citation.]" (Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency, supra, 188 Cal.App.3d 249, 260, 232 Cal.Rptr. 772, fn. omitted; Bowman v. City of Petaluma, supra, 185 Cal.App.3d at p. 1076, 230 Cal.Rptr. 413.)

It is also important to emphasize that it is not our task to judge the wisdom of the Board's action in allowing development of the Nichols project in the middle of Caspers Wilderness Park. (Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency, supra, 188 Cal.App.3d at p. 259, 232 Cal.Rptr. 772; Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 305, 223 Cal.Rptr. 18; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189, 139 Cal.Rptr. 396.) Our task is simply to determine whether the Board followed proper procedures and whether there is sufficient evidence supporting the Board's determination that no substantial changes were proposed in the Nichols project and no substantial changes occurred with respect to the circumstances under which the project was being undertaken.

II

Changes in the Project

a. Increase in Size

Fund contends the project has substantially increased in size. In its brief Fund states, "The proposed development has increased in size approximately 30%, from 308,000 square feet to 415,000 square feet. While the original proposal was for 22 one-story buildings, the current plan calls for 23 buildings, as many as five of which are two-story. The original proposal provided for 825 parking spaces, some to be located underneath the [building] modules; the current proposal includes 900 spaces...." The record reveals, however, that the increase in square footage is primarily a result of increasing the number of two-story buildings. While square footage has increased, the actual site coverage (the project's "footprint") has only increased from 308,000 to 331,000 square feet, that is, from 7 percent coverage of the site to approximately 7.6 percent coverage. ⁶ While the number of two-story buildings has increased, the actual height of the overall project has been lowered. The original proposal called for most of the modules to be built on 10-foot pylons "resulting in overall above-grade...