Rominger v. Cnty. of Colusa

Decision Date09 September 2014
Docket NumberC073815
Citation229 Cal.App.4th 690,177 Cal.Rptr.3d 677
CourtCalifornia Court of Appeals Court of Appeals
PartiesElaine ROMINGER et al., Plaintiffs and Appellants, v. COUNTY OF COLUSA et al. Defendants and Respondents; Adams Group Inc., Real Party in Interest and Respondent.

OPINION TEXT STARTS HERE

See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 831 et seq.

APPEAL from a judgment of the Superior Court of Colusa County, Jeffrey A. Thompson, Judge. Affirmed in part and reversed in part. (Super. Ct. No. CV23899)

Kronick, Moskovitz, Tiedemann & Girard, Jonathan P. Hobbs, Mona G. Ebrahimi and Leslie Z. Walker, Sacramento, for Plaintiffs and Appellants.

Stoel Rives, Timothy M. Taylor, Kristen T. Castanos, Juliet H. Cho, Sacramento, for Defendants, Respondents and Real Party in Interest.

ROBIE , J.

In this mandamus action under the California Environmental Quality Act (CEQA; Pub. Resources Code,1 § 21000 et seq. ), plaintiffs Elaine and Gerald Rominger challenged a mitigated negative declaration approved by defendant Colusa County with respect to a subdivision proposed by real party in interest Adams Group Inc. The trial court denied the Romingers' petition based on the conclusion that, notwithstanding the county's approval of a mitigated negative declaration, the county's “action in approving the subdivision map was not a project for CEQA purposes and [thus] no review beyond the preliminary review stage was required.”

On the Romingers' appeal, we conclude the trial court erred in determining the proposed subdivision was not a CEQA project, even though the proposal did not include any specific plans for development. On our independent review of the Romingers' other complaints, however, we find merit in only one. Specifically, we conclude that the Romingers adequately showed there is substantial evidence in the record that the subdivision may have a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, on that basis only, we will reverse and remand for the preparation of an environmental impact report (EIR).

FACTUAL AND PROCEDURAL BACKGROUND

The present action pertains to four adjacent parcels in Colusa County consisting of a total of just over 159 acres that are bordered by County Line Road to the south, Grevie Road to the east, the Southern Pacific Railroad right-of-way to the west, and agricultural land to the north. (We will refer to the four parcels jointly as the Adams property or the project site.) County Line Road intersects Interstate 5 just to the west of the property.

In 2001, the county approved an amendment to its general plan changing the general plan land use designation for the Adams property from agricultural-industrial to industrial and to its zoning ordinance changing the zoning designation from exclusive agriculture to industrial. In connection with that action, the county certified a mitigated negative declaration. Gerald Rominger challenged the county's action under CEQA, and the parties eventually settled that lawsuit while it was on appeal, with the county agreeing to prepare, circulate, and adopt a revised initial study/mitigated negative declaration incorporating supplemental mitigation.

On May 26, 2009, real party in interest Adams Group Inc. filed an application for approval of a tentative subdivision map to divide the four existing parcels into 16 parcels ranging in size from 1.19 acres to 30.80 acres “for future expansion where separate financing may be needed.” 2 At the time of the application, 93 acres were in agricultural production with the remaining 66 acres of the site occupied by agricultural related light industrial uses and ancillary undeveloped land, including a 11.44–acre detention pond at the northeast corner of the site. The existing agricultural related light industrial operations were accessed by a paved road extending into the site from Grevie Road.

The subdivision application indicated that no specific plan for future expansion was then available and that the intention was to continue the existing use of the property at that time. An attachment to the application described the property as “currently devoted [to] agriculture related industry,” with “a portion of said property devoted to agriculture production,” and the surrounding properties as “devoted to agriculture production with one homesite and shop to the north and Interstate 5 to the west.”

In January 2010, the county hired a consultant to prepare an initial study. The initial study was completed in June 2010 and recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have a significant environmental impact on cultural resources, but that impact could be mitigated to less than significant through mitigation measures.

In July 2010, the county noticed a public hearing for September 13 regarding adoption of the mitigated negative declaration, following a public comment period from July 12 to August 11. During the public comment period, the Romingers submitted comments requesting that the county proceed by way of an EIR rather than a mitigated negative declaration. The Romingers contended the mitigated negative declaration was “legally deficient in a number of areas, including an inadequate project description, a failure to recognize conflicts with the County's General Plan, and a failure to properly analyze and mitigate for impacts to areas such as agricultural resources, traffic, odor, noise, and water supply.” Among other things, the Romingers complained that “no future use [wa]s analyzed” and “even if the exact use is yet to be determined, the County must analyze the potential impacts of the operations based on the most reasonable significant impacts. [Citation.] Since the types of permissible uses in the Industrial zoning designation have been specified in the County's Municipal Code, it is both reasonable and feasible for the County to analyze environmental impacts from these activities.” The Romingers further argued that the county's “fail[ure] to consider the environmental effect of the foreseeable future industrial use and development” would result in the improper ‘piece-meal[ing] of the project.

As a result of the Romingers' comments, the county determined that a water supply assessment was needed. Accordingly, the county cancelled the public hearing on the original mitigated negative declaration. Thereafter, in September 2010, the Romingers submitted additional comments on the proposed mitigated negative declaration, asserting that it “failed to adequately analyze air quality, odors, greenhouse gas emissions, and noise.”

A revised initial study was completed by August 2011. Like the original study, the revised initial study recommended proceeding by way of a mitigated negative declaration. The study determined that the project would potentially have significant environmental impacts on air quality, cultural resources, and hydrology/water quality, but those impacts could be mitigated to less than significant through mitigation measures.

On August 1, 2011, the county noticed a public hearing before the planning commission on the proposed revised mitigated negative declaration for September 12, 2011, at 9:00 a.m. in the Board of Supervisors Chambers in the Historic Courthouse, located at 547 Market Street, Colusa.” The notice stated that the public comment period would be “from August 7, 2011 to September 5, 2011 at 5:00 p.m.”

As later explained in an agenda report for the board of supervisors, the revised initial study and mitigated negative declaration “evaluate[d] the impacts of potential development that m[ight] be triggered by the subdivision [ ], including development to facilitate access to and drainage for the newly created parcels, and potential future development of a reasonable development scenario.” The report took the position that because [t]he future development scenario [wa]s presented for analysis only, and [wa]s not currently proposed,” “the analysis ... completed by the County ... actually [wa]s not required by CEQA.” The report further explained as follows: “Based upon available building permit evidence, grading permit record, and visual evidence along the I–5 corridor, it is reasonable to expect that agriculture-related industries will develop on the project site. This projection is based on: a) existing industrial development on the project site is agriculturally related; [and] b) County Planning staff performed a records search, zoning map review, and field survey of properties along the 1–5 corridor, and found that development on industrially zoned properties consists of agriculture-related industries. Although a range of non-agriculture industrial uses are permitted in the M zone, the establishment of these uses is considered unlikely due to the geographical location of Colusa County, the building permit history and pattern, the location of natural resources, and market locations. For each of these reasons, a reasonable future development scenario that assumes agriculturally-related industrial development is analyzed in the County's [mitigated negative declaration].”

During the public comment period, the Romingers submitted a letter that reiterated the concerns they had previously expressed, asserted defects in the notices of the public hearing and in the close of public comment period, and also detailed additional complaints about the proposed mitigated negative declaration.

Notwithstanding the Romingers' complaints, the planning commission voted to approve the revised mitigated negative declaration for the project. The Romingers appealed that determination to the board of supervisors. The board of supervisors heard the Romingers' appeal in February 2012. The board denied the appeal and in March 2012 adopted a resolution approving the project and the revised mitigated negative declaration.

In April 2012, the Romingers commenced the...

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