Sierra Club v. Cnty. of Fresno

• Decision Date: 24 November 2020
• Docket Number: F079904
• Court: California Court of Appeals Court of Appeals
• Parties: SIERRA CLUB et al., Plaintiffs and Respondents, v. COUNTY OF FRESNO et al., Defendants; Friant Ranch, L.P., Real Party in Interest and Appellant.

57 Cal.App.5th 979

271 Cal.Rptr.3d 887

SIERRA CLUB et al., Plaintiffs and Respondents,

v. COUNTY OF FRESNO et al., Defendants;Friant Ranch, L.P., Real Party in Interest and Appellant.

F079904

Court of Appeal, Fifth District, California.

Filed November 24, 2020

As Modified December 22, 2020

Certified for Partial Publication.^*

Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris, Sacramento, for Real Party in Interest and Appellant.

Chatten-Brown Carstens & Minteer, Douglas P. Carstens, Santa Monica, and Michele Black Plaintiffs and Respondents.

FRANSON, J.

This appeal involves the application of the California Environmental Quality Act (CEQA)¹ to a proposed master-planned community located in Fresno County below Friant Dam and Millerton Lake. The project's developer, real party in interest Friant Ranch, L.P. (Developer), contends the trial court erred in drafting the writ of mandate issued after this court's opinion in Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704, 172 Cal.Rptr.3d 271 was affirmed in part and reversed in part by the California Supreme Court in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 241 Cal.Rptr.3d 508, 431 P.3d 1151 ( Sierra Club ). The Supreme Court "remand[ed] the matter for additional proceedings consistent with this opinion." ( Id. at p. 527, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Developer contends the trial court misinterpreted the combined opinions and abused its discretion by adopting an overly broad remedy that did not comply with section 21168.9. In Developer's view, the court should have issued a narrow writ, partially decertifying the environmental impact report (EIR) and leaving most of the project's approvals in place. We disagree.

In the unpublished parts of this opinion, we conclude (1) the trial court correctly interpreted the opinions of the Supreme Court and this court when it drafted the writ of mandate and (2) the writ properly directed the lead agency to vacate its approvals of the project because, for purposes of section 21168.9, those approvals are not severable—that is, are not unaffected by the CEQA violations.

In the published part of this opinion, we provide two alternate grounds for rejecting Developer's contention that the writ should have directed a partial decertification of the EIR. First, the statutes require the public agency to certify "the completion of" the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) We again reject the statutory interpretation that allows for partial certification because an EIR is either completed in compliance with CEQA or it is not so completed. ( LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682, 122 Cal.Rptr.3d 37 ( LandValue 77 ).) Second, even if CEQA is interpreted to allow for partial certification, it is inappropriate in this case because the CEQA violations affect the adoption of the statement of overriding considerations and, thus, taint the certification of the EIR as a whole. In other words, severance findings under section 21168.9, subdivision (b) are not appropriate in the circumstances of this case.

We therefore affirm the judgment. However, to reduce the potential for further disputes on remand, we direct the trial court to issue an amended writ of mandate with the more detailed instructions set forth in this opinion's disposition.

FACTS AND PROCEEDINGS

Developer proposed locating a master planned community for persons age 55 or older on a 942-acre site in north central Fresno County near the San Joaquin River. The version of the project approved by the County of Fresno (County) has five phases and includes approximately 2,500 residential units, 250,000 square feet of commercial space, and 460 acres dedicated to open space.

In October 2007, County distributed a notice of preparation of a draft EIR for the project. In August 2010, after the draft EIR was released and public comments received, County issued the final EIR. On February 1, 2011, County's board of supervisors approved the project by adopting resolution No. 11-031, which certified the completion of the final EIR and approved general plan amendment No. 511, which updated the Friant Community Plan (a component of the Fresno County General Plan) and authorized the proposed Friant Ranch Specific Plan.

In March 2011, three nonprofit organizations, Sierra Club, League of Women Voters of Fresno, and Revive the San Joaquin (collectively, plaintiffs), filed a petition for peremptory writ of mandate and complaint for declaratory and injunctive relief. Plaintiffs challenged the approval of the project and certification of the completion of the final EIR by alleging violations of CEQA and of the Planning and Zoning Law ( Gov. Code, § 65000, et seq. ) requirement that land use decisions be consistent with the applicable general plan.

In September 2012, after extensive briefing by the parties, the trial court held a hearing on the merits of the petition. In December 2012, the trial court issued its ruling denying plaintiffs' claims and entering judgment in favor of Developer and County. Plaintiffs appealed from the judgment.

Fifth District Review

By November 2013, the parties' appellate briefing was complete. Plaintiffs' opening and reply briefs did not analyze the application of section 21168.9 or the formulation of appellate relief for any of the asserted CEQA violations. Instead, the last sentence of each brief simply requested a "writ of mandamus directing the County ... to set aside, invalidate and void certification of the EIR for the Friant Ranch Project and all related approvals."² The joint respondents' brief did not argue this request for relief contradicted the requirements of section 21168.9 or was otherwise inappropriate in scope. Instead, Developer and County argued there were no CEQA violations and asserted this court should affirm the trial court's judgment. In short, in the first appeal, Developer and County placed all their eggs in the no-violation basket and made a tactical decision not to address plaintiffs' requested relief.

Following oral argument, this court issued its opinion in May 2014, which was published as Sierra Club v. County of Fresno, supra , 226 Cal.App.4th 704, 172 Cal.Rptr.3d 271. Like the trial court, we rejected plaintiffs' claims under the Planning and Zoning Law and the claims under CEQA involving wastewater. However, as described below, we concluded the EIR's discussion of issues relating to air quality was inadequate. (See pts. I.B.2. and I.C., post. ) Based on this failure to comply with CEQA, our opinion directed the trial court to issue a writ of mandate compelling County to vacate its approval of the project and not approve the project before preparing a revised EIR that cured the CEQA defects. Due to the parties' one-sentence approach to briefing the question of appellate relief, the opinion did not contain a section analyzing the formulation of that relief. (Cf. King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 895–900, 259 Cal.Rptr.3d 109 [part XII. of our opinion addressed appellate relief and § 21168.9]; Association of Irritated Residents v. Kern County Bd. of Supervisors, supra , 17 Cal.App.5th at p. 754, 225 Cal.Rptr.3d 463 [unpublished part of our opinion addressed formulating appellate relief].)

In June 2014, this court denied plaintiffs' petition for a rehearing. Developer did not file a petition for a rehearing.

Thus, at that point in the proceedings, Developer did not contend the relief contained in the disposition failed to comply with CEQA or, alternatively, this court had omitted an analysis of the appropriate relief, the application of section 21168.9, or the severability issue.³

Supreme Court Review

In July 2014, Developer filed a petition for review with the California Supreme Court, which was granted in October 2014. A significant procedural question addressed by the Supreme Court was the standard of judicial review applicable to CEQA claims challenging the adequacy of an EIR's discussion of a specific topic. ( Sierra Club, supra , 6 Cal.5th at pp. 511–516, 241 Cal.Rptr.3d 508, 431 P.3d 1151 [standard of review].) Developer argued the substantial evidence standard of review applied to an agency's determination that the EIR was adequate.

In December 2018, the Supreme Court issued its decision. ( Sierra Club, supra , 6 Cal.5th 502, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) On the standard of review question, the court rejected Developer's argument. It concluded the ultimate inquiry "is whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.]" ( Id. at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) The court further concluded this "inquiry presents a mixed question of law and fact" that usually is subject to independent review. ( Ibid. ) However, in situations where factual questions predominate, such as choosing among different methods for analyzing an environmental effect, a more deferential standard is warranted. ( Ibid. )

On the merits of the CEQA issues addressed, the Supreme Court stated, "we affirm in part and reverse in part the Court of Appeal's judgment and remand the matter for additional proceedings consistent with this opinion." ( Sierra Club, supra , 6 Cal.5th at p. 527, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Our interpretation of which parts of our May 2014 opinion were affirmed and which parts were reversed is set forth in an unpublished part of this opinion.

Remittitur

On January 31, 2019, the Supreme Court filed a remittitur stating, "that the attached are copies of the original judgment now final entered in the above-entitled cause on December 24, 2018." The next day, this court issued a remittitur to the trial court that stated:

"This remittitur is issued in the above entitled cause. Also enclosed is a copy of the Supreme Court remittitur, a

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