McQueen v. Board of Directors

• Decision Date: 18 July 1988
• Docket Number: No. H003297,MID-PENINSULA,H003297
• Citation: 202 Cal.App.3d 1136,249 Cal.Rptr. 439
• Court: California Court of Appeals Court of Appeals
• Parties: Loren McQUEEN, Plaintiff and Appellant. v. BOARD OF DIRECTORS OF theREGIONAL OPEN SPACE DISTRICT, et al., Defendants and Respondents.

Page 439

249 Cal.Rptr. 439

202 Cal.App.3d 1136

Loren McQUEEN, Plaintiff and Appellant. v. BOARD OF DIRECTORS OF the MID-PENINSULA REGIONAL OPEN SPACE DISTRICT, et al., Defendants and Respondents.

No. H003297.

Court of Appeal, Sixth District, California.

July 18, 1988.

Review Denied Oct. 26, 1988.

Robert J. Logan, San Jose, for plaintiff and appellant.

Les A. Hausrath, Wendel, Lawlor, Rosen & Black, Oakland, for defendants and respondents.

AGLIANO, Presiding Justice.

1. Introduction

California state government officials are required "to make decisions with environmental consequences in mind" by the California Environmental Quality Act ("CEQA"), Public Resources Code sections 21000 et seq. ¹ (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283, 118 Cal.Rptr. 249, 529 P.2d 1017.) Public agencies should give at least preliminary consideration to the possible environmental effects of any proposed activity which is not exempt from CEQA by statute or administrative regulation. ( §§ 15002, subd. (k), 15061, subd. (a); Code, §§ 21080, subd. (c), 21100, 21151; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 529 P.2d 66; City of Carmelby-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 240, 227 Cal.Rptr. 899.)

Loren McQueen ("petitioner") challenges the decision of the Board of Directors of the Mid-Peninsula Regional Open Space District ("the district") to file a notice of CEQA exemption for its activities described below. The issue is whether the district undertook a project within the meaning of CEQA and if so, its nature.

Petitioner appeals after the superior court essentially denied him relief on his petition for writ of mandate claiming the district's noncompliance with CEQA. We will reverse the trial court's order, require the district to engage in environmental review before implementing any plan for the acquired property, and remand for reconsideration of petitioner's request for attorney fees.

2. Facts

On January 26, 1983, the district authorized its general manager to begin negotiating the purchase of two parcels of surplus federal property which adjoined the district's Sierra Azul Open Space Preserve, namely a former Air Force station on Mount Umunhum and a ground air transmitter receiver site one mile east of the summit of Mount Thayer. The federal government vacated the property in 1980 and subsequently leased it for communications purposes. There are about 70 buildings on the property.

In April 1983, the district's general manager received an advisory memorandum asking who would be responsible for disposing of transformers on the property which were filled with polychlorinated biphenyls ("PCB"). He was asked whether the federal government's General Services Administration ("GSA") planned to sell the district this waste disposal problem or clean it up first. The memo advised that under federal law if the PCB concentration was more than 50 parts per million, the fluid would have to be drained and incinerated. If the concentration was more than 500 parts per million, the transformer hull also would have to be specially disposed of. The memo also advised that there may be tougher state regulations.

At a meeting on August 10, 1983, the district approved a purchase offer. At a meeting on January 11, 1984, the district approved a revised offer. Adjoining property owners were notified of the proposed acquisition prior to these meetings. There is no evidence they were notified about the PCB problem. No one at that time raised environmental concerns.

Subsequent events occurred in 1986. The GSA accepted the district's revised offer on January 27. At a meeting on March 12, the district, at its land manager's recommendation, adopted a resolution reaffirming its purchase of the property and directing its managers to execute the necessary documents.

On March 12, the district also tentatively adopted an interim use and management plan proposed by its land manager which anticipated (1) a school's six-month study of the feasibility of using the existing buildings as a retreat and seminar facility, (2) a district staff study of no longer than 18 months to produce a master plan for future use of the property, and (3) the district's final decision on future use after the studies and public hearings. Under the interim plan, pending final adoption of a master plan the district would continue existing communications facilities leases of the property, but the property would otherwise be withheld from dedication as public open space, be preserved by a caretaker, and remain closed to the public except for part of a road already in use.

Petitioner spoke at the March 12 meeting about problems with the water system on the property, but no other environmental concerns were raised. On the same date, district staff completed a checklist indicating that this activity was categorically exempt from CEQA on several grounds.

On March 19, Colonel Hodge, an Air Force civil engineer, notified the GSA about the existence of hazardous waste materials on the former Air Force station, namely transformers containing PCB, buried fuel tanks, and drums containing solvents and other chemicals. Hodge suggested "the sale of properties containing hazardous materials and unabandoned [sic ] storage tanks may be illegal." He proposed postponing closure of the sale pending investigation of the need for clean-up action. On March 21, the GSA agreed with the district to extend the close of escrow until April 30 in order "to resolve the environmental concerns which have recently arisen."

At the district's meeting on April 16, petitioner's counsel read Hodge's letter aloud and questioned whether the district could acquire the property without an environmental clearance. A district staff member responded that acquisition of open space was categorically exempt. Another district staff member explained that the federal government would be dealing with removal of the underground tanks. At this meeting, the district finally adopted the interim use and management plan at its general manager's recommendation. The written interim plan does not provide for storing, using, or disposing of the toxic, hazardous substances on the property.

On April 18, the district's land manager proposed to the GSA that escrow close as planned and that the federal government would subsequently investigate the possibility of toxic or hazardous materials on the property and take care of any necessary removal or containment. On April 21, the district entered a supplemental agreement with the GSA, accepting the former Air Force station and allowing the federal government "access to the site to conduct an investigation and such decontamination as may be required."

Also on April 21, petitioner's counsel addressed a letter to the district challenging its assertion that the property acquisition was categorically exempt from CEQA. The district acquired the property by a deed recorded April 24. On April 25, the district filed a notice of CEQA exemption for a project described as "[a]cquisition for public open space" of surplus "Federal property on Mts. Umunhum and Thayer" which asserts three grounds, discussed below (p. 446), for categorical exemption.

Petitioner filed this lawsuit on May 27 seeking to restrain the district from acquiring the property and implementing any plan for its use until the district conducted an adequate environmental review. The district responded on November 17 with affidavits by its land manager and its real property representative asserting the following. The toxic and hazardous substances are located on the improved part of the property. In this area are a number of electrical transformers which probably contain PCB, a number of containers of chemicals, solvents, and other petroleum products, and underground oil and gasoline tanks which have probably been pumped dry. None seems to be leaking. The GSA had promised before escrow closed that the federal government would take full responsibility for removing the substances and decontaminating the property. Its first step was an inspection of the property on October 8 by the United States Corps of Engineers. The removal would be completed in two years, while the district was studying its final plan for use of the property.

At a court hearing on November 21, the district took the position that environmental review would not be appropriate until the district was considering its final plan. Its counsel asserted, "We don't feel that if you buy a piece of property or acquire a piece of property that happens to contain allegedly potential toxics that that triggers CEQA. There isn't anything to investigate or inquire about at this time. There is going to be a process of disposal taking care of that. The federal government admitted responsibility for that."

When questioned by the court about this proposed removal, the district's counsel replied that it was not an activity of the district and it was only speculative so far. He conceded that if removal was decided on, at that time environmental review might be appropriate.

By order filed December 8 the court denied petitioner relief except for ordering the district to provide a status report within 30 days on the investigation of the former Air Force station for toxic contaminants and any proposals for decontamination. The court reserved jurisdiction to make further orders about decontamination and attorney fees and costs. The district filed a status report on January 8, 1987. After a hearing on May 1, 1987, the court denied petitioner's request for attorney fees in a statement of decision filed May 8.

3. Description of the Project

Petitioner contends the district employed an incomplete and misleading description of the project in determining it was exempt from CEQA. An accurate project description is necessary for an intelligent evaluation of the potential environmental effects of a proposed activity. (Cf...