Madera Oversight Coal., Inc. v. Cnty. of Madera
| Decision Date | 13 September 2011 |
| Docket Number | No. F059153.,F059153. |
| Citation | 199 Cal.App.4th 48,131 Cal.Rptr.3d 626,2011 Daily Journal D.A.R. 13943 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MADERA OVERSIGHT COALITION, INC., et al., Plaintiffs and Appellants, v. COUNTY OF MADERA, Defendant and Appellant; Tesoro Viejo, Inc., et al., Real Parties in Interest and Appellants. |
OPINION TEXT STARTS HERE
Sara Hedgpeth–Harris; and Patience Milrod, Fresno, for Plaintiffs and Appellants.
David A. Prentice and Douglas W. Nelson Madera, for Defendant and Appellant.
Sanger & Olson, John M. Sanger, San Francisco, and Charles R. Nelson for Real Parties in Interest and Appellants.
This is the second appeal involving a petition for writ of mandamus challenging the County of Madera's (County) approval of the Tesoro Viejo mixed-use development project. (See Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016, 126 Cal.Rptr.3d 859 [].) Here, the trial court granted a petition for writ of mandamus on the ground that the discussion in the environmental impact report (EIR) concerning the project's water supply was inadequate and, as a result, violated the California Environmental Quality Act (CEQA).1
Plaintiffs appealed, contending the EIR's discussion of historical resources of an archaeological nature, traffic impacts, and cumulative impacts also violated CEQA. Defendants cross-appealed, contending the discussion of water supply in the EIR was adequate and a writ of mandate should not have been issued. The substantive disputes between the parties involve various questions concerning the scope of the administrative record and the admission of extra-record evidence.
We reach the following conclusions. First, the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record. Second, the mitigation measure that proposes to verify that certain archaeological sites are historical resources for purposes of CEQA constitutes an unlawful deferral of environmental analysis. Third, the EIR's traffic analysis lacks clarity regarding the baseline used to determine the project's potential impacts. Fourth, the discussion of cumulative impacts was legally inadequate because it failed to disclose and explain the basis for assuming a 30 percent buildout in the area by 2025. Fifth, the trial court correctly determined that the analysis of the project's proposed water supply was inadequate for purposes of CEQA. Finally, the trial court did not err in apportioning costs.
The judgment will be affirmed in part and reversed in part.
Plaintiffs in this proceeding are (1) Madera Oversight Coalition, Inc., a California nonprofit corporation that alleges its members are residents of Madera County committed to preventing further environmental damage, (2) Revive the San Joaquin, Inc., a California corporation that describes itself as a grassroots nonprofit organization, qualified under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)), working to restore and sustain a healthy San Joaquin River, and (3) the Dumna Tribal Council, the governing body of the Dumna Tribe, a sovereign entity.
The defendant and real parties in interest in this matter are (1) County, (2) Tesoro Viejo, Inc., (3) Rio Mesa Holdings, LLC and (4) Tesoro Viejo Master Mutual Water Company (collectively, defendants). Plaintiffs allege that Tesoro Viejo, Inc., and Rio Mesa Holdings, LLC are the proponents of the development project and that they own, or hold a beneficial interest in, the land within the project.
The Tesoro Viejo project involves the development of 1,579 acres located in southeastern Madera County. The project site is between the San Joaquin River on the east and State Route 41 on the west and north of the Coombs Ranch. It is within an area known as Rio Mesa and is subject to the Rio Mesa Area Plan, which County adopted in 1995.
The project proposes a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.
In February 2006, Tesoro Viejo, Inc., requested that County initiate the environmental review process for the proposed development.
County issued a notice of preparation of a draft EIR for the Tesoro Viejo project in November 2006 and set an environmental scoping meeting for December 14, 2006.
In February 2008, County published a notice stating that a draft EIR for the Tesoro Viejo project was available for public review and comment. Responses to comments received were included in the final EIR.
On September 23, 2008, County's planning commission held a public hearing and passed a motion that recommended the board of supervisors certify the final EIR.
On December 8, 2008, County's board of supervisors held a public meeting to consider approving the final EIR, the specific plan and related rezoning, an infrastructure master plan, a water supply assessment, and a development agreement, all of which concerned the Tesoro Viejo project. At that meeting, the board of supervisors unanimously certified the final EIR. It also approved an ordinance adopting the Tesoro Viejo specific plan and the related comprehensive rezoning of the property within the plan boundaries. The notice of determination for the project was filed the next day.
On January 7, 2009, plaintiffs filed a petition for writ of mandamus and complaint for declaratory and injunctive relief. They alleged three causes of action that are pertinent to this appeal and cross-appeal: for (1) violations of CEQA, (2) violations of the Planning and Zoning Law (Gov.Code, § 65000 et seq.), and (3) violations of the California Water Code. Two other causes of action are not pertinent here.2
County lodged and certified the administrative record in mid-May 2009. Along with their briefing, plaintiffs thrice requested augmentation of the administrative record.
The hearing on substantive issues occurred on September 8, 2009. At the close of the hearing, the trial court stated its conclusion that the EIR, as an informational document, was inadequate because it did not discuss issues that caused uncertainty regarding the water supply for the project. The court stated it would order decertification of the EIR and would direct County to vacate any entitlements approved on the basis of the EIR.
The trial court filed its written decision, which included an order granting in part the motions to augment the administrative record, on October 26, 2009. The judgment granted in part and denied in part the petition for writ of mandamus. It included the following determination:
“County as lead agency abused its discretion by failing to proceed as required by CEQA, in that the Project EIR failed to disclose, discuss or analyze uncertainties surrounding the proposed use of Holding Contract No. 7 as the Project's source of water, and likewise failed to address alternative water sources which might supply water to the project if Holding Contract water were not available, as well as the environmental impacts of using such alternative sources.”
The judgment also stated that any claim for an award of costs or attorney fees would be determined by the trial court upon a separate posttrial motion.
On the same day that the trial court filed its judgment, it also filed a peremptory writ of mandate directing County and its board of supervisors (1) to set aside the certification of the EIR and all related entitlements, and (2) upon taking final action on the project, to file a return with the court setting forth what it had done to comply with the writ.
Plaintiffs filed a notice of appeal relating to the trial court's judgment denying parts of the petition for writ of mandate. Defendants filed a cross-appeal relating to that portion of the judgment that (1) granted plaintiffs' motion to augment the record as to six documents and (2) granted plaintiffs' petition for writ of mandamus as to the issue of water supply.
In February 2010, the trial court awarded attorney fees to plaintiffs in the amount of approximately $277,000. The award of attorney fees is the subject of a separate appeal (case No. F059857).
The parties have raised a number of questions regarding the scope of the record in this case. These questions involve both rulings made by the trial court and motions to augment the record filed in this court.
We publish this part of the opinion because some of the positions taken by the parties demonstrate confusion concerning how to preserve and present evidentiary issues in a CEQA appeal.3 We provide guidance to practitioners in subsequent cases so that they will proceed more efficiently in the expenditure of their own time and that of the courts.4
Our discussion of the rules of law concerning administrative records begins with clarifying the relationship between the administrative record and other types of evidence. Specifically, there are two distinct ways to place evidence before the superior court in a CEQA matter: The evidence can be (1) included in the administrative record pursuant to the provisions of subdivision (e) of section 21167.6 or (2) admitted as extra-record evidence. (See Western States, supra, 9 Cal.4th 559, 38 Cal.Rptr.2d 139, 888 P.2d 1268 [].) Extra-record evidence, of course, is “evidence outside the administrative record.” ( Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1269, 4 Cal.Rptr.3d 536.)
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