San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus

• Decision Date: 04 January 1996
• Docket Number: No. F022674,F022674
• Citation: 42 Cal.App.4th 608,49 Cal.Rptr.2d 494
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 811, 96 Daily Journal D.A.R. 1211 SAN JOAQUIN RAPTOR/WILDLIFE RESCUE CENTER, Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents. WESTERN STONE PRODUCTS, Real Party in Interest and Respondent.

Page 494

49 Cal.Rptr.2d 494

42 Cal.App.4th 608, 96 Cal. Daily Op. Serv. 811,

96 Daily Journal D.A.R. 1211

SAN JOAQUIN RAPTOR/WILDLIFE RESCUE CENTER, Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents WESTERN STONE PRODUCTS, Real Party in Interest and Respondent.

No. F022674.

Court of Appeal, Fifth District, California.

Jan. 4, 1996.

As Modified on Denial of Rehearing

Feb. 1, 1996.

Review Denied March 20, 1996.

[42 Cal.App.4th 611] Richard L. Harriman, Hanford, for Appellant.

Michael H. Krausnick, County Counsel and E. Vernon Seeley, Assistant County Counsel, for Defendants and Respondents.

Rein & Abbott and Teresa Vig Rein, Modesto, for Real Party in Interest and Respondent.

OPINION

ARDAIZ, Presiding Justice.

Appellant San Joaquin Raptor/Wildlife Rescue Center (SJR) appeals from a judgment of the superior court denying SJR's petition for writ of administrative mandamus. The petitioner challenged the issuance by respondent County of Stanislaus (County) to respondent Western Stone Products (Western Stone) of a use permit authorizing Western Stone to extract sand and gravel from a 20-acre area located near the Tuolumne River, and the County's adoption of a mitigated negative declaration for the project. The County conducted an initial study and concluded that Western Stone's project would not have a significant adverse effect on the environment if certain mitigation measures were incorporated into the project, and that therefore no environmental impact report (EIR) was required. We will affirm the judgment.

APPELLANT'S CONTENTIONS

SJR contends that the superior court's denial of its petition for writ of administrative mandamus was erroneous for three reasons. First, SJR contends that the ruling was erroneous because evidence in the administrative record supports a fair argument that significant environmental impacts or effects may occur. Second, SJR argues that the County did not proceed in the manner required by law due to the County's alleged "failure to analyze and consider the cumulative on-site and off-site impacts of the project." Third, appellant contends that substantial evidence does not support the County's conclusion that the project was consistent with the County's general plan.

As we shall explain, we find no merit to any of these contentions. ¹ After we first provide a brief overview of the project itself and of the procedural history of this case, and a brief overview of the California Environmental Quality Act, we will directly address each of SJR's contentions of error.

THE PROJECT AND THIS LITIGATION

In November of 1988 Western Stone submitted to the County an application for a use permit to excavate sand, gravel and overburden from a 20-acre undeveloped site located on private property south of the Tuolumne River. Western Stone proposed to remove approximately 600,000 tons of sand, gravel and overburden from the site over a period of approximately 10 years. When the excavation was completed, Western Stone proposed to "reclaim" the area as a fish pond.

The initial study described the area surrounding the project site as follows:

"Character of Surrounding Area: To the west is the Landmark Genetics Laboratory complex of buildings, including six residential structures along the bluff. To the south is an orchard with two residences along the bluff. To the north is a pond in an old gravel excavation. To the east is a reclaimed gravel pit now being farmed in alfalfa, a pond and the Western Stone Products processing plant. To the north of the ponds is the Tuolumne River."

The county planning commission approved the permit application and adopted a mitigated negative declaration in September of 1990. SJR objected to the approval of the application and appealed the planning commission's actions.

The County's board of supervisors set a hearing date of October 16, 1990, for SJR's appeal, but the hearing was continued three times as SJR negotiated with Western Stone and the County over SJR's concerns about the project. The appeal hearing eventually took place on March 12, 1991, and the County denied SJR's appeal.

SJR then filed in superior court a "Verified Petition and Complaint." The superior court sustained demurrers to this and to two subsequent amended pleadings. The superior court's February 1992 judgment against SJR was reversed by this court in an opinion issued by this court in (San Joaquin Raptor/Wildlife Rescue Center, etc. v. County of Stanislaus et al., (July of 1993) F017473 [nonpub. opn.] ). We need not recount here what we said in that opinion. It will suffice to say that although we agreed with the superior court that demurrers to eight of SJR's ten purported causes of action were properly sustained, we agreed with SJR that it had sufficiently stated causes of action seeking a writ of administratus mandamus on the basis of allegations that the County's initial study had failed to consider significant "cumulative impacts" of the project (second cause of action) and allegations that there was no substantial evidence to support the County's determination that the project was consistent with the County's general plan (fifth cause of action).

At the time of SJR's appeal in F017473, we were of course dealing only with the issue of the adequacy of the allegations of SJR's pleading. After remittitur issued, Western Stone answered SJR's second amended pleading. The superior court received further briefing, SJR lodged the administrative record with the court, and a hearing on SJR's petition for writ of mandate was held in August of 1994. The court took the matter under submission and then denied SJR's petition, and entered judgment against SJR.

THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

The California Environmental Quality Act (commonly referred to as CEQA), Public Resources Code section 21000 et seq., was enacted in 1970. The basic purposes of CEQA are (1) to inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities, (2) to identify ways that environmental damage can be avoided or significantly reduced, (3) to prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible, and (4) to disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental impacts are involved. (Guidelines, § 15002; see also Pub.Resources Code, §§ 21000-21002.) ² CEQA applies to "projects" which involve "governmental action." (Guidelines, § 15002, subds. (b) and (d).) The term "project" is expansively defined to include many different types of action which have "a potential for resulting in a physical change in the environment, directly or ultimately...." (Guidelines, § 15378; see also Pub.Resources Code, § 21080.) "Governmental action" may involve "(1) Activities directly undertaken by a governmental agency, (2) Activities financed in whole or in part by a governmental agency, or (3) Private activities which require approval from a governmental agency." (Guidelines, § 15002(b).)

Once there is a proposed project involving governmental action, the governmental agency conducts a "preliminary review" and determines whether there is any possibility that the activity in question may have a significant effect on the environment. (Guidelines, § 15061.) If "it can be seen with certainty" that there is no possibility of any such significant effect, then the proposed project is not subject to CEQA. (Ibid.) If there is a possibility of a significant effect, then the "Lead Agency" shall conduct an "Initial Study" to "determine if the project may have a significant effect on the environment." (Guidelines, § 15063.) The "Lead Agency" is the public agency which has the principal responsibility for carrying out or approving a project. (Guidelines, §§ 15367, 15050, 15051.)

If the agency's initial study determines that "there is substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment, regardless of whether the overall effect of the project is adverse or beneficial," then the agency shall prepare an EIR. (Guidelines, § 15063(b).) "[I]f there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment," then the agency shall prepare a "negative declaration." (Ibid.) A "negative declaration" is "a written statement by the Lead Agency briefly describing the reasons that a proposed project, not exempt from CEQA, will not have a significant effect on the environment and therefore does not require the preparation of an EIR." (Guidelines, § 15371.)

If an EIR is required, the lead agency prepares a "draft environmental impact report" (draft EIR) which is made available for public review. (Guidelines, §§ 15084, 15087.) The agency "shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response." (Guidelines, § 15088.) A "final EIR" is then prepared. (Guidelines, § 15089.) The "final EIR" is "an EIR containing the information contained in the draft EIR, comments either verbatim or in summary received in the review process, a list of persons commenting, and the response of the Lead Agency to the comments received." (Guidelines, § 15362(b).) The agency must certify that its "decision-making body reviewed and considered the information contained in the final EIR prior to approving the project." (Guidelines, § 15090.) Similarly, in those situations in which the agency determines that a negative declaration is appropriate, a proposed negative declaration is prepared (Guidelines, § 15070) and is made available for public review. (Guidelines, §§ 15072, 15073.) ³ The proposed negative declaration ...