Riverwatch v. County of San Diego
| Decision Date | 22 December 1999 |
| Docket Number | No. D030732.,D030732. |
| Court | California Court of Appeals Court of Appeals |
| Parties | RIVERWATCH et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO, Defendant and Appellant; Palomar Aggregates, Inc., et al., Real Parties in Interest and Appellants. |
John J. Sansone, County Counsel, Diane Bardsley, Chief Deputy County Counsel, and R. Mark Beesley, Deputy County Counsel, for Defendant and Appellant.
Hall & Associates, Carlyle W. Hall, Jr., Andrew Henderson, Los Angeles, and Bethany A. Dreyfus, for Plaintiffs and Respondents.
Remy, Thomas and Moose, Tina A. Thomas, Andrea A. Matarazzo, Sacramento, and Katherine Currie Pittard; Stephenson Worley Garratt, Schwartz, Heidel & Prairie, William J. Schwartz, Jr., and Jennifer Treese Wilson, San Diego, for Real Parties in Interest and Appellants.
Real parties in interest and appellants Palomar Aggregates, Inc., and William Pankey (collectively Palomar) would like to develop a rock quarry on Rosemary's Mountain in the northeastern portion of San Diego County. After its initial application for a major use permit was opposed by officials of defendant and appellant the County of San Diego (the county), Palomar prepared a revised application, which the county eventually approved. Plaintiff and respondent Riverwatch, an unincorporated association of residents and taxpayers who live near the proposed quarry and respondent Virginia Buonarti, who also lives near the proposed quarry (collectively Riverwatch) then filed a petition for writ of mandate in the superior court challenging the adequacy of the environmental impact report (EIR) that had been approved by the county. The superior court granted the writ and directed the county to vacate its approval of the project. In particular, the court found the county had not sufficiently addressed the impact of a road widening which would be required to accommodate increased truck traffic generated by the quarry. The court also found that the EIR had failed to properly consider the impact of prior illegal activity at the project site and the level of air pollution that would be produced by the quarry.
On appeal, Palomar argues that under a recently enacted clarification of the Permit Streamlining Act (PSA; Gov.Code,1 § 65920 et seq.) its initial application was approved by operation of law and the time in which that approval could be challenged has passed. Thus Palomar contends the superior court's writ is now moot. In the alternative Palomar argues the superior court abused its discretion in finding the EIR was inadequate.
We reject Palomar's PSA contentions. As we explain, because Palomar asked the county to stop processing its initial EIR, no approval under the PSA occurred. Moreover, even if such an approval had occurred, because no work on the project has occurred, the time in which to challenge the approval has not yet commenced running and thus the substantive issues raised by the project opponents would not under any circumstances be moot.
Nonetheless, we find that, in part at least, the superior court erred in granting the writ. Contrary to the superior court's finding, the final EIR submitted by the appellants provided information which was sufficient to permit the county to consider the impact of the both the quarry and the road widening. The superior court also abused its discretion in requiring that the EIR account for prior illegal activity by using an early baseline from which impacts could be measured. However, like the superior court we find that the EIR did not properly consider the level of air pollution produced by the project.
In March 1987 Palomar submitted to the county an application for a major use permit (MUP) that would allow it to operate a rock quarry on Rosemary's Mountain. The project Palomar proposed would have removed the entire top of Rosemary's Mountain by mining approximately 24 million tons of rocks. Because of the heavy truck traffic the quarry would generate, the project would also require the widening of an adjacent two-lane road, State Route 76 (SR 76.) Rosemary's Mountain is located generally east and north of the intersection of SR 76 and Interstate 15 (15). In that area SR 76 runs along the northern bank of the San Luis Rey River.
The county determined an EIR would be required for the project and Palomar prepared a draft EIR. On June 10, 1988, a completed draft EIR was released for public comment.
The county received a number of comments objecting to the proposed project. According to Palomar's opening brief, "Palomar quickly recognized that, in order to address the concerns of the County, the public, and other agencies, it had to redesign the Project." At a July 28, 1988, meeting of the county Planning and Environmental Review Board (the PERB), Palomar advised the county that it no longer wished to pursue the project outlined in the EIR. Palomar confirmed its desire in an August 3, 1988, letter to the PERB and the county took no further action with respect to the 1987 MUP application.
Between 1988 and 1991 Palomar redesigned its proposed project and in August 1991 the county released a second draft EIR. The August 1991 draft EIR concluded that although many of the significant environmental impacts of the project had been reduced, they had not been eliminated.
The county received a number of comments criticizing the August 1991 draft EIR. In response to the public comments Palomar prepared revisions to the draft EIR, which were released to the public in August 1992. Because the county nonetheless found that a number of environmental impacts of the redesigned project could not be mitigated, the county's planning commission denied Palomar's MUP application in January 1993 and the board of supervisors denied Palomar's appeal in December 1994.
With the approval of the board of supervisors, Palomar again redesigned the project in an effort to assure the county that the project's negative impacts could be fully mitigated. In April 1996 the county released a third draft EIR prepared by Palomar. By the time the third draft was released the project had been reduced from a quarry that would take the top off Rosemary's Mountain to one that would only take rock from the eastern slope of the mountain.
With respect to SR 76, the draft EIR concluded that the realignment would have a significant impact on the San Luis Rey River floodplain. In particular the draft found that the realignment would increase the degradation of the river channel bed because it would increase the capacity of the river bed to transport sediment. However, the draft also found that this impact could be successfully mitigated by taking a number of steps to control erosion along the river. The draft EIR also evaluated and rejected an alternative realignment, which would not impact the floodplain. The alternative realignment was rejected because it would require the creation of 300-foot high slopes, which the draft EIR found to be a significant and unmitigable visual impact.
Like the first two draft EIR's, the third draft attracted a great deal of negative comment from the public and from public agencies. The focus of many of the negative comments was the failure of the draft EIR to fully analyze the impact the realignment of SR 76 would have on the San Luis Rey River floodplain. Caltrans (California Department of Transportation) criticized the manner in which the EIR addressed the highway widening and realignment and disagreed with the draft's proposal for a driveway access from SR 76 to the project. The United States Fish and Wildlife Service and local water districts informed the county that the studies, maps and date used in the draft EIR were out of date and did not accurately reflect hydrological and biological conditions on the floodplain. In particular various water districts criticized the failure of the third draft EIR to include an HEC-2 computer analysis of the floodplain, which the districts believed was necessary to determine the basis for appropriate flood control measures, bank stabilization and installation of new riparian vegetation on any new bank created by the widening.
In response to the criticism of the draft EIR's analysis of the impact of the widening on the floodplain, the county stated no quarry operations would be permitted until the widening of SR 76 had been completed and that the road would not be completed until analysis of the impact of the road alterations had occurred in conjunction with a later application to Caltrans for a permit to encroach on the floodplain. The drafters further concluded that it made little sense to require the developers to bear the cost of conducting an HEC-2 computer analysis before Caltrans had developed final plans for the design of the realignment.
Following consideration of the EIR, the public's comments and its staffs responses, the county's board of supervisor's certified the EIR and granted Palomar a MUP permitting it to operate its quarry.
Riverwatch filed a petition for a writ of mandate that challenged the validity of the final EIR. Riverwatch alleged the EIR did not meet the requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and various land use and zoning regulations.
After considering the briefing submitted by the parties, the superior court granted Riverwatch's petition and directed that the county vacate its approval of the quarry project. The superior court found the final EIR improperly segmented analysis of the impacts of the SR 76 widening by deferring full consideration of those impacts until Caltrans conducted a review of the widening. The superior court also found the final EIR failed to account for prior illegal and unauthorized activities at the quarry site. Finally, ...
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