Sundstrom v. County of Mendocino

Citation202 Cal.App.3d 296,248 Cal.Rptr. 352
Decision Date22 June 1988
Docket NumberNo. A038922,A038922
CourtCalifornia Court of Appeals
PartiesRobert T. SUNDSTROM, Plaintiff and Appellant, v. COUNTY OF MENDOCINO et al., Defendants and Respondents. Harold K. MILLER, Real Party in Interest.

Luke & Perry, Leslie R. Perry, Jan L. Turner, Santa Rosa, for plaintiff and appellant.

H. Peter Klein, County Counsel, Yves A. Hebert, Deputy, Ukiah, for defendants and respondents.

Richard J. Henderson, Ukiah, for real party in interest.

Remy and Thomas, Sharon E. Duggan, Sacramento, for Planning and Conservation League as Amicus Curiae on behalf of plaintiff-appellant.

NEWSOM, Associate Justice.

Robert T. Sundstrom (hereafter appellant), appeals from a judgment of the Mendocino County Superior Court denying a petition for writ of mandate to set aside a use permit of Mendocino County (hereafter County) for noncompliance with the California Environmental Quality Act (CEQA). Appellant owns a shopping mall in the small unincorporated coastal town of Gualala. Real party in interest, Harold K. Miller (hereafter applicant or Miller), currently operates a small 17-unit motel with a 42-seat restaurant and filling station on the outskirts of town. He plans to build nearby a 40-unit motel with a 120-seat restaurant and cocktail lounge, manager's apartment, and 7-unit apartment. Located off Highway 1 on a bluff overlooking the ocean, the proposed development has been approved by the California Coastal Commission. The use permit at issue in this appeal concerns a private sewage treatment plant intended to serve the new development as well as Miller's existing motel complex.

For purposes of domestic waste disposal, appellant's businesses will have a population equivalent of 477 residents. The town of Gualala itself lacks a community sewage system and experiences widespread problems of seepage from overloaded septic systems. Acting on the advice of the Regional Water Quality Control Board, Miller proposes to build a relatively advanced and sophisticated waste disposal system--a tertiary treatment plant employing irrigation to dispose of treated water. The engineering firm designing the plant, the Clayton Engineering Company of St. Louis, Missouri, asserts that it will be constructed in a manner exceeding ordinary standards to assure reliable performance. In a letter to the Regional Water Quality Control Board, an official in the division of environmental quality for the State of Missouri confirms that plants of this design "do meet permit requirements." After reviewing preliminary plans, the Regional Water Quality Control Board approved the conceptual design and drafted discharge requirements providing, among other things, for a maximum of 8,700 gallons as the seven-day average of daily wastewater flow. Prior to construction, the Regional Board will review final design plans and specifications "to determine the adequacy of the proposed facilities."

The proposed site of the plant lies about 400 feet east of Highway 1 on a hillside just beyond the developed portion of Gualala. The land has a gentle gradient of 2 to 15 percent and is covered in equal portions by forest and meadow. The forest consists predominantly of Bishop Pine, Redwood, and White Fir with an understory of Scotch Broom, Rhododendron and other coast brush species. The closest buildings, located on streets immediately to the west and south, are a machine shop, plumbing establishment, and a Baptist Church described by a local resident as "a lovely white chapeled church on a low hill in town, set in redwoods." Appellant's shopping mall lies 200 feet downhill from the proposed site.

The site, comprising about five acres, contains two small sewage lagoons that receive wastes from Miller's filling station. Upon construction of the treatment plant, the lagoons would be cleared and substantially enlarged so that they could store waste water from the motel/restaurant complex during the winter months. About two acres of the property are suitable for irrigation during the dry season of the year, the remainder being precluded by slope or soil conditions. The plans call for spray irrigation of the existing ground cover of forest, brush, and meadow.

After receiving Miller's application for a conditional use permit, the County planning staff filled out an "environmental checklist" intended to comply with regulatory provisions requiring an initial study to determine the necessity of an environmental impact report. The staff subsequently recommended that the Planning Commission grant the permit and adopt a negative declaration affirming that the environmental impact report is not required. Three conditions in the draft permit related to environmental considerations: that the treatment plant be "approved by the Regional Water Quality Control Board," that it comply with the regulations of the Air Pollution Control Board, and that a plan for sludge disposal "be approved by the Regional Water Quality Control Board and the Department of Public Health, Environmental Health Division."

The matter came up for hearing before the Planning Commission on February 27, 1986. When certain members of the public raised questions about the effect of the proposed irrigation on lower properties, the staff recommended two additional conditions: the submission of a hydrological study on the impact on adjacent sewage disposal systems and the establishment of a 50-foot buffer zone between the irrigation field and the street lying downhill to the west. But several Commissioners still expressed concern that the Regional Water Quality Control Board had not submitted comments on the project. The Commission deferred a decision and directed the staff to send the application and draft negative declaration to interested state agencies. (Cal.Admin. Code, tit. 14, § 15073)

The County received substantive comments from the California Coastal Commission and the Regional Water Quality Control Board. The comment of the Regional Water Quality Control Board acknowledged potential problems relating to "ground and surface water hydrology" and "odor generation" from the plant and stated that the Board would take these problems into account in reviewing the project plans and specifications. The Coastal Commission objected specifically to the absence of a plan for sludge disposal.

When the matter came again before the Planning Commission on April 3, 1986, the staff drafted further conditions to the use permit in response to public objections. Most pertinent to this appeal, it recommended that the applicant obtain a second hydrological study investigating the impact of the proposed irrigation on problems of surface runoff. Despite these concessions, the Planning Commission divided evenly in a three to three vote on granting the use permit. Since the effect of the tie vote was to deny approval of the permit, Miller appealed the decision to the Board of Supervisors.

Responding to the expressed need for further hydrological studies, Miller retained a civil engineer, George C. Rau, to study the effects of the proposed irrigation on adjacent sewage disposal systems. Rau questioned the suitability for irrigation of land lying within about 200 feet of the street bordering the property to the west, but concluded that irrigation on a remaining parcel of about two acres would have no adverse impact on neighboring properties. His calculations indicated that the evapotranspiration rate of water sprinkled on these two acres would exceed the average daily flow of waste water from the treatment plant. To the extent that some percolation of ground water did occur, a layer of clay 18 to 30 inches below the surface would channel the subsurface flow to a neighboring ravine through a route bypassing appellant's property. As precautionary measures, Rau recommended that a "collection swale" be dug around "the perimeter of the irrigated area" and that roadside ditches along the bordering streets be enlarged.

At the Board of Supervisors hearing on April 28, 1986, Rau delivered a presentation based on his hydrological study. A consulting sanitarian, William G. Rummel, spoke in opposition to the permit application. When certain residents of the town expressed concern that the project would discourage organization of a sewage district, the staff proposed further conditions to the permit requiring Miller to join a community sewage system within two years of its establishment. By a four to one vote, the Board of Supervisors approved the permit as so amended and adopted the negative declaration.

Petitioning for writ of mandate, appellant alleged that the County "committed a prejudicial abuse of discretion by approving a negative declaration for the project in that the records contained substantial evidence to show the project may have a significant effect on the environment" requiring preparation of an environmental impact report. This appeal follows the trial court's denial of the petition.

Appellant raises both procedural and substantive objections to the County's adoption of a negative declaration with respect to the use permit. In brief, he contends that the initial study was a pro forma exercise, involving no real investigation, that failed to disclose the need for an environmental impact report. When environmental problems were raised in proceedings before the Planning Commission, the County responded by adding condition upon condition to the permit. Two of these conditions--the requirement of additional hydrological studies and approval of plans for sludge removal--were significant departures from CEQA procedures. As the application reached the final hearing before the Board of Supervisors, evidence of environmental problems accumulated. The applicant's own hydrological study provided the most persuasive arguments. But the County nevertheless approved the permit, subject to further conditions, and adopted a...

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