Save The Field v. Del Mar Union Sch. Dist.
| Decision Date | 26 September 2022 |
| Docket Number | D079480 |
| Parties | SAVE THE FIELD, Plaintiff and Appellant, v. DEL MAR UNION SCHOOL DISTRICT, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County, No. 37-2020-00020207-CU-TT-CTL Joel R Wohlfiel, Judge. Motion to dismiss denied; judgment and order affirmed.
Procopio, Cory, Hargreaves &Savitch, Kendra J. Hall and Rebecca L. Reed for Plaintiff and Appellant.
Atkinson, Anderson, Loya, Ruud &Romo, Wendy H. Wiles Jeffrey Werner Frey and Nicolle A. Falcis for Defendant and Respondent.
After respondent Del Mar Union School District (District) certified a mitigated negative declaration and approved an elementary school rebuild project (the Project), appellant Save The Field petitioned for a writ of mandate alleging violations of the California Environmental Quality Act (CEQA; Pub. Resources Code,[1] § 2100 et seq.). The superior court found deficiencies in three areas: traffic, construction noise, and biological resources, and issued a peremptory writ of mandate ordering District to (1) vacate its resolution approving the Project; (2) vacate its certification of the mitigated negative declaration and (3) comply with CEQA. After allowing the parties to brief the remedy, the court gave District three options to proceed, including by using a "focused" environmental impact report (EIR), which District prepared and eventually certified. The court then discharged the writ.
Appellant filed a notice of appeal of the court's judgment granting the peremptory writ of mandate and later amended its notice to include the order discharging the writ. It contends that once the court vacated the mitigated negative declaration and found the Project may have significant environmental impacts, it erred by permitting District to proceed by way of a focused EIR; that we should partially reverse the judgment with directions that District prepare a "full" EIR for the Project.
District has moved to dismiss the appeal, arguing it is moot in part because appellant did not file a separate action challenging the focused EIR. It further argues appellant waived or forfeited its right to appeal the court's order discharging the writ by failing to object below to certain of District's actions and/or it is estopped from appealing the order discharging the writ.
We conclude the appeal is not moot, reject District's forfeiture and timeliness arguments, and deny the motion to dismiss. On the merits, we hold appellant has not demonstrated District's focused EIR, notwithstanding its nomenclature, violated CEQA by precluding informed agency decisionmaking and informed public participation. Accordingly, we affirm the judgment and order.
In February 20, 2020, District published a notice of intent to adopt a mitigated negative declaration[2] for the Project which would demolish, redesign and rebuild the Del Mar Heights Elementary School. In part, the Project expands the school's footprint by approximately 14,400 square feet to about 66,800 total square feet, and builds additional paved parking on existing grass fields. District determined the Project would have no significant adverse impacts on the environment such that a mitigated negative declaration was appropriate. In May 2020, District's governing board adopted the mitigated negative declaration and approved the Project.
District filed a notice of determination (§ 21152)[3] advising of its actions and stating the Project would not have a significant effect on the environment.
The following month, appellant filed a verified petition for a writ of mandate against District. In part, appellant alleged the mitigated negative declaration failed to comply with CEQA in numerous respects, including by understating the severity and scope of the environmental impacts. It prayed for issuance of both alternative and peremptory writs.
In December 2020, the trial court issued a writ of mandate vacating the mitigated negative declaration and the Project's approval, and suspending all activity until District fully complied with CEQA. The court rejected many of appellant's claims. However, it found deficiencies with District's conclusions as to construction noise, traffic impacts on neighboring residential areas, and biological resources. More specifically, the court found substantial evidence supported a fair argument that a significant environmental impact could result from noise levels for construction activities occurring closer to nearby residences. It found the record supported a fair argument that increased vehicle access combined with construction of a new entry point (an Americans with Disability Act (ADA)-compliant ramp and stairs) onto the school grounds would increase vehicle traffic on a neighboring residential cul-de-sac, a significant environmental impact. It also found the analysis lacked data on impacts to a particular chaparral habitat on which the Project would encroach and a plant within that habitat.[4] The court invited the parties to submit briefing on how to style a proposed writ.
In January 2021, District's board voted to remove the proposed ADA-compliant ramp and stairs from near the end of the residential street. Thereafter, the parties submitted briefing regarding the substance of a peremptory writ and proper remedy. Appellant argued CEQA, its Guidelines and case law mandated that District prepare a full, not a "limited," EIR. It maintained the law required a full EIR be prepared even if a court found a mitigated negative declaration inappropriate on limited grounds, and District had no discretion to prepare a revised mitigated negative declaration. Appellant argued a limited EIR would not comply with CEQA as District was required to analyze the project as a whole, and "describe a reasonable range of alternatives to the proposed project and its location that would feasibly attain the project's basic objectives while avoiding or substantially lessening the project's environmental impacts."
Pointing out appellant had raised challenges in eight CEQA categories involving 13 issues but succeeded on only three, and thus the "vast majority" of the mitigated negative declaration satisfied CEQA and its goals, District argued a full EIR was not warranted, necessary or equitable. It maintained CEQA and case law gave the court broad discretion to craft equitable remedies and District discretion to prepare another mitigated negative declaration. District argued Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260 (Preserve Wild Santee) authorized the court to issue the "limited" writ District sought, that is, to recirculate the mitigated negative declaration regarding only the temporary construction noise and biological resources issues, as it had satisfied the potential traffic issue having removed the Project's stairs and ramp.
In February 2021, the superior court ruled, citing section 21168.9,[5]that in the event of a finding that a public agency has not complied with CEQA, it could not direct the agency to exercise its discretion in any particular way. It stated District had three choices if it chose to proceed with the Project: prepare and circulate a complete EIR, a "focused" EIR, or a second mitigated negative declaration, any of which would satisfy CEQA requirements. The court left the decision to District's discretion.[6] It entered a judgment on appellant's peremptory writ of mandate ordering District to set aside and vacate its resolutions approving the Project and decertify the Project's mitigated negative declaration; suspend effective December 22, 2020, all Project activities that could result in any change or alteration to the physical environment until District reconsidered its resolution and brought it into compliance with CEQA; comply with CEQA; and file a return to the writ of mandate within 30 days after service of the writ. The court gave appellant 20 days from the date of the return to file objections. It retained jurisdiction over the proceedings by way of a return to the writ until District complied with CEQA.
Thereafter, District filed three returns to the peremptory writ of mandate, one in March 2021 and two in April 2021. In its initial return, District advised the court that its board had held a special meeting and decided to pursue a focused EIR. It stated it vacated the resolution that led to the mitigated negative declaration and the Project's approval, and on March 1, 2021, had published a notice that it was proposing to prepare the focused EIR. The initial return indicated the public had until March 30, 2021, to comment on the notice of preparation. On March 28, 2021, the court entered another judgment that incorporated handwritten notations it had made in its February 2021 judgment. That judgment states that the court "shall reserve and retain jurisdiction over this action until such time as [District] files a return evidencing that it has complied with the attached Peremptory Writ of Mandate."
In its second return, District informed the court that it had received public comments on its notice of preparation. It advised the court it was preparing a draft focused EIR, planned to obtain and consider public comments on the draft, distribute a proposed final EIR, and consider that and the Project at a future board meeting. In its third return to the writ, District advised the court that at the end of April 2021 it had published a notice of availability of a draft focused EIR. It provided an estimated schedule for responding to comments, distributing a final EIR, and conducting its board meeting.
In June 2021, District issued its final...
To continue reading
Request your trial