Gentry v. City of Murrieta

• Citation: 36 Cal.App.4th 1359,43 Cal.Rptr.2d 170
• Decision Date: 18 July 1995
• Docket Number: No. E013126,E013126
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5612, 95 Daily Journal D.A.R. 9513 Rita GENTRY, Plaintiff and Appellant, v. CITY OF MURRIETA et al., Defendants and Respondents. McMILLIN COMMUNITIES, Real Party in Interest and Respondent.

Page 170

43 Cal.Rptr.2d 170

36 Cal.App.4th 1359, 95 Cal. Daily Op. Serv. 5612,

95 Daily Journal D.A.R. 9513

Rita GENTRY, Plaintiff and Appellant, v. CITY OF MURRIETA et al., Defendants and Respondents McMILLIN COMMUNITIES, Real Party in Interest and Respondent.

No. E013126.

Court of Appeal, Fourth District, Division 2, California.

July 18, 1995.

As Modified on Denial of Rehearing Aug. 17, 1995.

[36 Cal.App.4th 1367] Rita Gentry, in pro. per., for petitioner and appellant.

Weissburg and Aronson, Inc., Gregory V. Moser and Steven J. Simerlein, San Diego, for defendants and respondents and real party in interest and respondent.

OPINION

RICHLI, Associate Justice.

Appellant Rita Gentry (Gentry) raises virtually every conceivable objection under the California Environmental Quality Act (CEQA) ( Pub.Resources Code, § 21000 et seq.) ¹ to the approval by respondent City of Murrieta (City) of a plan of respondent McMillin Communities (McMillin) to build 198 homes. The City found that the project, as mitigated, would have no significant environmental effects; as a result, it adopted a mitigated negative declaration and approved the project. The trial court rejected Gentry's objections.

We, too, reject the vast bulk of Gentry's objections and contentions. However, we agree with her that: (1) the City failed to comply with the requirement that it send a copy of its proposed negative declaration to one other public agency (not many other agencies, as Gentry claims); (2) the City imposed one mitigation condition (not many, as Gentry claims) which improperly deferred formulation of specific mitigation measures into the future; (3) the City improperly added certain mitigation conditions (but not as many as Gentry claims) after it released the proposed negative declaration for public review; (4) the trial court applied an incorrect standard of review; and (5) under the correct standard of review, there was substantial evidence to support a fair argument that the project would have certain significant adverse environmental effects (but, again, not as many as Gentry claims). Accordingly, we reverse and we direct the trial court to void the City's adoption of the negative declaration and approval of the project.

I. FACTUAL AND PROCEDURAL BACKGROUND

Prior to 1988, McMillin's predecessor in interest applied to the County of Riverside (County) for approval of a vesting tentative subdivision map for a project consisting of approximately 555 single-family homes near Murrieta Hot Springs, to be called Adobe Springs. In or about September 1988, in connection with Adobe Springs, the County prepared and certified an EIR (Adobe I EIR).

Meanwhile, the County was considering amending its Comprehensive General Plan (General Plan) by adopting the Southwest Area Community Plan (Community Plan), which would apply to, among other places, the Murrieta area. In March 1989, the County prepared and certified an EIR for the Community Plan (Plan EIR). On November 28, 1989, the County adopted the Community Plan. The Community Plan incorporated the Plan EIR by reference.

In February 1990, McMillin applied to the County for approval of a vesting tentative subdivision map for a 230-home project (later reduced to 198 homes) adjacent to Adobe Springs, to be called Adobe Springs II. Also in February 1990, McMillin applied for a zoning change for Adobe Springs II. The County and, later, the City treated these two applications interchangeably as a single "project" for CEQA purposes. We will follow their lead and refer to the two applications, collectively, as "the Project."

As part of an initial study of the Project, the County considered reports prepared by or for McMillin's predecessor in interest, including a general biological report, a biological report focused on the California gnatcatcher, a traffic report, a slope stability report, and an archeological report. The County solicited and received comments from other county departments, federal, state, and local agencies and other interested parties. The County also received unsolicited comments from Gentry, acting as representative of the Los Alamos Neighborhood Association.

On January 3, 1991, County Planning Department staff completed an environmental assessment of the Project, Environmental Assessment No. 34807 (EA No. 34807). EA No. 34807 found that the Project as originally proposed would have a number of adverse environmental effects, including effects on traffic, water and sewer systems, recreational facilities, slopes, erosion, floodplains, and wildlife and vegetation. It also found, however, that each of these effects would be mitigated by measures prescribed by various public agencies, or, in the case of wildlife and vegetation, measures prescribed by the biological reports. It concluded that "although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described ... have been or will be incorporated into the project." Thus, it attached a proposed negative declaration.

On February 13, 1991, the County gave notice of its intent to adopt the negative declaration, and set a public hearing. A County Planning Department staff report dated February 20, 1991 concluded that the Project was consistent with both the General Plan and the Community Plan, and would have no significant effects on the environment. Thus, it recommended adoption of the negative declaration and approval of the Project. County Planning Department staff also prepared a list of conditions of approval of the Project, numbered 1 through 32. Many of these were environmental mitigation conditions.

The County Planning Commission held public hearings regarding approval of the Project and the proposed negative declaration on March 6, 1991, April 10, 1991, and May 1, 1991. Gentry submitted written materials to the County and appeared at these hearings; she argued in favor of either additional mitigation measures, or the preparation of an EIR.

On May 1, 1991, at the conclusion of the public hearings, the County Planning Commission unanimously recommended to the County Board of Supervisors that it adopt the negative declaration and approve the Project. On June 11, 1991, however, McMillin asked the County to send the administrative record on the Project to the City, which was about to be incorporated and which would have jurisdiction over the Project. Accordingly, on June 18, 1991, the County deferred further consideration of the Project to the City.

The City was incorporated on July 1, 1991. Also on July 1, 1991, the City temporarily adopted all County ordinances, with the exception of the County's General Plan. On October 22, 1991, the City adopted specified County ordinances permanently, again not including the County's General Plan.

On January 9, 1992, McMillin submitted a planning application to the City in connection with the Project. On March 17, 1992, the City gave notice of its intent to adopt a negative declaration regarding the Project, and set a public hearing.

On April 3, 1992, the City released a City Planning Department staff report on the Project. ² The report incorporated the County's staff report. It recommended that two of the County's conditions of approval be modified, and one new condition added; subject thereto, the report recommended adoption of a negative declaration and approval of the Project.

On April 7, 1992, the City held a public hearing on the Project. Gentry again submitted written materials, appeared at the hearing, and argued in favor of preparation of an EIR.

The April 7 public hearing was continued to May 5, 1992. In the interim, in response to comments at the April 7 hearing, McMillin procured supplemental reports on storm water drainage, groundwater recharge, and groundwater pollution. Two of these were dated April 22, 1992; the third was dated April 27, 1992. Gentry claims that one of the reports was released on May 1, 1992, but that the other two were not given to the City until the continued public hearing on May 5, 1992 at which the Project was approved. This finds some support in the record.

On May 5, 1992, the City released a second City Planning Department staff report, responding to issues raised at the April 7 public hearing. ³ The report included a revised list of proposed conditions of approval numbered 1 through 128, together with a proposed mitigation monitoring program. Subject to these conditions, it again recommended adoption of a negative declaration and approval of the Project.

At the continued public hearing on May 5, 1992, one of the City staff's proposed conditions of approval was modified and one new condition was added. McMillin accepted all the proposed conditions. Gentry again submitted written materials, appeared at the hearing, and spoke in favor of additional mitigation measures.

At the conclusion of the hearing, the City Council unanimously approved the negative declaration, the mitigation monitoring program, and McMillin's application for subdivision map approval. The City Council found that: (1) the Project was consistent with existing zoning and land uses, and with all applicable state laws, local ordinances, and City policies; (2) there was a reasonable probability that the Project would be consistent with the City's proposed general plan; (3) even if the Project proved to be inconsistent with the City's eventual general plan, there was little or no probability of substantial detriment to or interference with the general plan; (4) environmental concerns had been or would be mitigated by conditions of approval; and (5) the Project as mitigated was not likely to have substantial adverse environmental effects. On May 19, 1992, the City Council approved McMillin's application for a zoning change.

On September 2, 1992, Gentry filed a petition for peremptory writ of mandate and complaint for injunctive relief. On January 29, 1993, the trial...