Save Our Peninsula Committee v. Board

• Decision Date: 15 February 2001
• Docket Number: No. H020933.,No. H020900.,H020900.,H020933.
• Citation: 87 Cal.App.4th 99,104 Cal.Rptr.2d 326
• Court: California Court of Appeals Court of Appeals
• Parties: SAVE OUR PENINSULA COMMITTEE et al., Plaintiffs and Respondents, v. MONTEREY COUNTY BOARD OF SUPERVISORS, Defendant and Respondent; September Ranch Partners et al., Real Parties in Interest and Appellants. Sierra Club et al., Plaintiffs and Respondents, v. County of Monterey et al., Defendants and Respondents; September Ranch Partners et al., Real Parties in Interest and Appellants.

104 Cal.Rptr.2d 326

87 Cal.App.4th 99

SAVE OUR PENINSULA COMMITTEE et al., Plaintiffs and Respondents, v. MONTEREY COUNTY BOARD OF SUPERVISORS, Defendant and Respondent;

September Ranch Partners et al., Real Parties in Interest and Appellants.

Sierra Club et al., Plaintiffs and Respondents, v. County of Monterey et al., Defendants and Respondents;

September Ranch Partners et al., Real Parties in Interest and Appellants.

No. H020900.

No. H020933.

Court of Appeal, Sixth District.

February 15, 2001.

McCutchen, Doyle, Brown & Enersen, Los Angeles, Stephen L. Kostka, Marie A. Cooper, Walnut Creek; Lombardo & Gilles, Anthony L. Lombardo, Salinas, Jacqueline M. Zischke, Attorneys for Real Parties in Interest and Appellants, September Ranch Partners.

Alexander T. Henson, Richard H. Rosenthal, Carmel Valley, Gregory James, Independence, Attorneys for Plaintiffs and Respondents, Save Our Peninsula Committee, et al.

Frances M. Farina, Michael W. Stamp and Jeanine G. Strong, Attorneys for Plaintiffs and Respondents, Sierra Club, Save Our Carmel River and Patricia Bernardi.

No appearance by Defendants and Respondents, County of Monterey, Monterey County Board of Supervisors.

BAMATTRE-MANOUKIAN, J.

In this CEQA¹ case, the project applicants, real parties in interest September Ranch Partners, appeal from a judgment granting two petitions for a writ of mandate. The superior court found that the project's Environmental Impact Report (EIR) was legally inadequate under CEQA and directed that the Monterey County Board of Supervisors (the Board) vacate certification of the EIR and prepare and circulate a legally adequate EIR with respect to specified water and traffic issues. Appellants argue that the Board's certification of the EIR must be upheld because the Board's determinations regarding the project's water and traffic impacts were supported by substantial evidence.

After reviewing the record, we conclude that the EIR in this case did not comply with CEQA in its treatment of several critical water issues. Because of these inadequacies, the Board's action certifying the EIR and approving the project constituted an abuse of discretion. We further conclude, however, that the EIR was adequate in its discussion of traffic impacts and mitigation. We will therefore affirm in part and reverse in part the judgment in favor of petitioners and direct that the trial court issue a new writ of mandate in accordance with the views expressed herein.

BACKGROUND²

The September Ranch property consists of 891 acres located along Carmel Valley Road approximately 3 miles east of the junction with Highway 1. Most of the property is hilly terrain with south-facing slopes. A level terrace adjacent to Carmel Valley Road of approximately 21 acres contains an equestrian center, including a barn, outside stalls, a training ring, a residence for employees, and pastureland. A regional park and a small county-owned parcel lie to the west and northwest of the property and to the south is a golf resort and lodge. Otherwise the surrounding area is characterized by residential development. The zoning of the September Ranch property is for residential development. The property is governed by the Carmel Valley Master Plan (Master Plan), which is part of the county's general plan. Under the Master Plan, this amount of acreage would allow for 208 homes.

The September Ranch property is located within the Carmel River watershed. The property's water needs have been served by well water since the early 1930s. A new well was installed in 1990. Additional wells were installed in 1992 for purposes of data collection. A small aquifer, or "sub-basin," underlies the 21 acre terrace on the property. It was originally thought by the owners to be a separate aquifer, isolated from the main Carmel Valley aquifer. However testing during the environmental review for this project determined that this sub-basin was not entirely separate and that there was some water exchange between it and the Carmel Valley aquifer. The Carmel Valley aquifer is a primary source of water for the Monterey Peninsula.

It is well documented that water availability is a critical problem throughout Monterey County (the County) and in Carmel Valley in particular. In 1988, the County passed Ordinance No. 3310, finding that because of expanded water usage "the potential exists that Monterey County's allocation of water will be exhausted so as to pose an immediate threat to the public health, safety, or welfare." In 1995, the State Water Resources Control Board issued Order No. 95-10 and related Decision No. 1632. Order No. 95-10 found that the California-American Water Company (Cal Am), which was the principal supplier of water to the Monterey Peninsula, had diverted excess water from the Carmel River basin "without a valid basis of right," causing environmental harm. Cal Am was ordered to substantially limit its diversions, to mitigate the environmental effects of its excess usage and to develop a plan for obtaining water legally. Decision No. 1632 similarly found that "[e]xisting diversions from the Carmel River have adversely affected the public trust resources in the river." The Carmel Valley Master Plan also recognized the serious water shortage in the Carmel Valley and set the standard for development until a solution was found. In Policy 54.1.7, the Master Plan found that without an additional water supply, such as from a proposed dam project, "development will be limited to vacant lots of record and already approved projects. All development which requires a water supply shall be subject to County adopted water allocation and/or ordinances applicable to lands in the Carmel Valley Master Plan area."

The Morgens family has owned the September Ranch property since the 1960s. In 1995 James Morgens formed a partnership called September Ranch Partners for the purpose of developing the property. The partnership submitted its development application to the County in June of 1995. The proposal was for 100 single family lots and 17 moderate income housing units. The application included a September Ranch Water Supply Plan which called for Cal-Am to supply potable water. However, the month after the project application was submitted, the State Water Resources Control Board adopted Order No. 95-10, which cut back Cal-Am's diversion of water from the Carmel River basin and essentially foreclosed its ability to provide water for new projects.

The Draft EIR

On August 4, 1995, the County issued its Initial Study for the September Ranch project, and the notice of preparation of the EIR was filed the same day. The draft EIR was published over two years later, on October 27, 1997.

The draft EIR recognized existing policies regarding water resources in the Carmel River valley. It stated that potable water for the project was to be provided by a small mutual water system, independent of the Cal-Am Water system, which would supply water pumped from wells on the September Ranch property. It noted that because there was potential groundwater flow between the September Ranch sub-basin and the adjacent Carmel Valley aquifer, "pumping in the September Ranch basin has the potential to affect water levels in areas of the Carmel Valley alluvium." Furthermore, "any increase in the impacts to the [Carmel Valley] aquifer would be considered an adverse environmental impact given the water supply problems in the Carmel Valley area." Any impact reducing flow to the Carmel Valley aquifer was "potentially significant." As mitigation for this impact, the draft stated that water demand for the project must be limited to existing water use on the property.

The draft EIR included a discussion of "Existing Water Demand" for the property. It stated that there was "limited historic data" to determine actual water usage over the years; however Monterey Peninsula Water Management District records from 1991 to 1996 showed that water use on the property ranged from a low of 0.40 acre-feet in 1995 to a high of 40.68 acre-feet in 1993. There was no data prior to 1991. The draft reported that the applicants were "establishing pasture on approximately 21 acres" of the property. Irrigation was an allowable use of well water for the property. Based on the assumption that these 21 acres were irrigated, the draft EIR then determined "for the purposes of assessing impacts" that an estimate of existing water use for the September Ranch property was 45 acre-feet per year. This was based on an estimated 2 acre-feet for each of the 21 acres of pastureland plus 3 acre-feet used by the existing equestrian center and residence. The 2 acre-feet per acre was an estimate for irrigated pastureland taken from Monterey Peninsula Water Management District guidelines for irrigated lands in the area and from a 1985 Pajaro Valley Irrigation Report.

Water demand for the project as proposed for 117 residences was calculated at 61.15 acre-feet per year. This resulted in an increase of approximately 16.15 acre-feet per year over the existing estimated usage of 45 acre-feet per year. The draft EIR explained that the groundwater storage in the September Ranch sub-basin was more than adequate to supply the increased water demand during wet or normal weather conditions. However, the sub-basin supply would be vulnerable during a sustained drought of more than five years, which the draft concluded was a significant impact that must be mitigated. Furthermore, increased pumping on the September Ranch property could delay or reduce subsurface groundwater recharge to the Carmel Valley aquifer. Although this reduction would be a "small percentage" of the overall groundwater recharge in the Carmel Valley aquifer, the draft EIR acknowledged that "any impact reducing flow to the Carmel Valley aquifer is potentially significant." The draft concluded that in order to mitigate the impact of increased pumping, the project applicants would either have to limit water...