Sierra Club v. Gilroy City Council

• Decision Date: 16 July 1990
• Docket Number: No. H006051,H006051
• Citation: 222 Cal.App.3d 30,271 Cal.Rptr. 393
• Court: California Court of Appeals Court of Appeals
• Parties: SIERRA CLUB, et al., Plaintiffs and Appellants, v. GILROY CITY COUNCIL, Defendant and Respondent, SHAPPELL INDUSTRIES OF NORTHERN CALIFORNIA INC., Real Party in Interest and Respondent.

Page 393

271 Cal.Rptr. 393

222 Cal.App.3d 30

SIERRA CLUB, et al., Plaintiffs and Appellants, v. GILROY CITY COUNCIL, Defendant and Respondent SHAPPELL INDUSTRIES OF NORTHERN CALIFORNIA INC., Real Party in Interest and Respondent.

No. H006051.

Court of Appeal, Sixth District, California.

July 16, 1990.

As Modified on Denial of Rehearing

Aug. 15, 1990.

Review Denied Oct. 11, 1990.

Bruce Tichinin, Morgan Hill, for appellants

Andrew L. Faber, Linda A. Callon, Russell J. Hanlon, Berliner, Cohen & Biagini, San Jose, for respondent Gilroy City Council.

Steven M. Bernard, Elise M. Balgley, Bernard & Wood, Fremont, for respondent and real party in interest Shappell Industries.

COTTLE, Associate Justice.

Plaintiffs Sierra Club and Richard Pontius appeal from a judgment denying their petition for writ of mandate. They seek to compel defendant Gilroy City Council (City) to set aside its certification of an environmental impact report (EIR) and its associated approval of a general plan amendment for failing to (1) insure the continuing viability of the California Tiger Salamander, (2) deny approval because there were feasible alternative sites for the project, (3) require a supplemental EIR on the salamander, (4) prepare a cumulative impact report discussing other projects statewide, and (5) make a determination whether the California Tiger Salamander was a rare or endangered species. We shall affirm.

FACTS

On July 20, 1987, real party in interest Shapell Industries, Inc. (Shapell) applied to the City to amend the designation of a 1,716 acre parcel of unimproved land, known as O'Connell Ranch, from "rural residential and hillside residential" on the City's general plan to "low density residential and hillside residential." Shapell sought to build a residential development on the parcel. The "Conceptual Development Plan" for the project called for 486 acres to be set aside for open space and recreation, 239 acres for residential development, 964 acres of hillside preserve, and 27 acres for streets.

On December 3, 1987, City engaged a consultant to prepare an EIR for the project. The consultant subsequently sub-contracted out the wildlife section of the EIR to an environmental consulting firm, LSA Associates, Inc. (LSA). On April 20, 1988, the City's planning department sent out a notice of preparation of EIR to various individuals and entities including the California State Department of Fish and Game.

The Department of Fish and Game responded to the City's notice by suggesting On July 28, 1988, plaintiff Richard Pontius submitted a written comment on the draft EIR in which he expressed concern about the impact of the O'Connell Ranch project on various species of animal including the California Tiger Salamander. The California Tiger Salamander is an ancient amphibian which spends most of its time underground in the burrows of ground squirrels, gophers, badgers and other animals. It emerges from the burrows only for brief periods during or following rains to breed and lay eggs in seasonal ponds or slow-moving streams. One such breeding pond is located on the O'Connell Ranch. On August 10, 1988, Fish and Game submitted further comments, expressing its concern over the loss of 454 acres of wildlife habitat to suburban uses.

that there be further analysis of the impact of the project on the habitats of indigenous plants and animals. Subsequently, the draft EIR was completed and circulated. The document concluded that the project would significantly reduce the present wildlife habitat value of the site and proposed several mitigation measures including use of native trees and plant materials and use of golf course water to replace loss of stock ponds.

On August 22, 1988, the public was notified of a planning commission meeting set for September 1 on the Shapell project. In preparation for that meeting, the planning commission issued a staff report indicating that the project would have a significant impact on grassland, woodland and riparian habitat. Pontius testified about the California Tiger Salamander at this meeting and indicated that 15 to 30 acres of habitat might be sufficient to protect the California Tiger Salamander.

On September 6, 1988, Pontius again testified at a duly scheduled meeting of the city council. He requested that a decision on the EIR be deferred until a study of the California Tiger Salamander through one complete breeding cycle (November 1988-May 1989) could be conducted, preferably by renowned herpetologist, Dr. Robert Stebbins. Pontius's attorney also testified regarding alleged inadequacies in the draft EIR, which deficiencies he set forth in greater detail in a letter sent to the City the following day. In response, the City voted to continue its hearing until October 3 and to commission a study of the impact of the project on the California Tiger Salamander habitat.

After Malcolm Sproul, LSA's consultant, gave an oral report of his findings in the California Tiger Salamander study to the City on October 3, 1988, Pontius again testified expressing disagreement with Sproul's data and opinions. Sproul had pointed out that the California Tiger Salamander had been found in 117 locations in 27 counties in central California including eleven fully protected sites. Pontius asked that the City wait for completion of a study of the California Tiger Salamander, which Stebbins estimated would take a year to complete. On October 17, 1988, Sproul completed his written report. He noted that the California Tiger Salamander had been observed at two sites in Gilroy, that it was designated by the U.S. Fish and Wildlife Service as a "Category 2 candidate" species, meaning that there is insufficient biological data available to justify listing the species as threatened, and by the Department of Fish and Game as a species of "special concern," meaning that the species has a declining population and is being monitored for future listing. Sproul listed six mitigation measures to protect any California Tiger Salamander population at the O'Connell Ranch site, including the preservation of 50 acres surrounding the California Tiger Salamander breeding pond as open space.

Thereafter, on October 24, 1988, the City prepared its proposed final EIR on the project, consisting of the draft EIR, written comments on the draft EIR, revisions to the text of the draft EIR, and the LSA report. The City sent a copy of this proposed final EIR to the Department of Fish and Game for their review and comments and published a public notice indicating that a "Preliminary Final EIR" had been prepared and was available for public review and written comments. The notice stated that comments had to be received by the council by November 2, 1988, as City received several written responses to the preliminary final EIR including one from Pontius and one from Pontius's attorney. Sierra Club entered the proceedings on November 2 in support of the position taken by Pontius. The Department of Fish and Game also sent a written response to the City in which it endorsed the environmental review of the California Tiger Salamander and recommended that, in addition to the six mitigation measures proposed by Sproul, the City also adopt five further mitigation measures including creating a 50-acre conservation easement, prohibiting the use of chemicals or the stocking of fish in the breeding pond, limiting construction near the pond to April 15 through December 1 (the time California Tiger Salamander is underground), limiting other construction activities, and constructing a second breeding pond.

they would vote on the final EIR on November 7.

The city council approved the general plan amendment and certified the EIR at its November 7, 1988, closed meeting. At the same time, City adopted every mitigation measure proposed to protect the California Tiger Salamander and adopted certain findings, mitigation measures and statements of overriding considerations relating to the EIR. City determined that the project would not result in a significant cumulative effect on the California Tiger Salamander because populations of California Tiger Salamander were scattered throughout the state, the mitigation measures should reduce the impact to insignificance, and other California Tiger Salamander populations had been sighted in Gilroy. Finally, City determined that other project sites were infeasible.

On December 8, 1988, plaintiffs filed the instant action seeking a writ of mandate to compel the City to set aside its certification of the EIR. The grounds were essentially the same grounds urged here on appeal. By the time the case went to trial on June 8, 1989, Dr. Robert Stebbins had conducted a 75-hour study of the California Tiger Salamander, the results of which plaintiffs attempted to introduce into evidence. The court determined that the Stebbins report was inadmissible and denied the petition for writ of mandate. This appeal followed.

STANDARD OF REVIEW

In an action to set aside an agency's determination under the California Environmental Quality Act (CEQA) (Pub.Res.Code, § 21000 [222 Cal.App.3d 39] et seq.), ¹ the appropriate standard of review is determined by the nature of the proceeding below. Focusing on the language of the two judicial review CEQA provisions, the Supreme Court concluded that Public Resource Code section 21168 "establishes the standard of review in administrative mandamus proceedings" under Code of Civil Procedure section 1094.5 while section 21168.5 "governs traditional mandamus actions" under Code of Civil Procedure section 1085. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5, 253 Cal.Rptr. 426, 764 P.2d 278.) The former section applies to proceedings normally termed "quasi-adjudicative," "in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency...." (§...