Woodward Park Homeowners v. City of Fresno

• Decision Date: 13 April 2007
• Docket Number: No. F049481.,F049481.
• Citation: 58 Cal.Rptr.3d 102,149 Cal.App.4th 892
• Court: California Court of Appeals Court of Appeals
• Parties: WOODWARD PARK HOMEOWNERS ASSOCIATION, INC., et al., Plaintiffs and Appellants, v. CITY OF FRESNO et al. Defendants and Respondents, DeWayne Zinkin, Real Party in Interest and Respondent.

58 Cal.Rptr.3d 102

149 Cal.App.4th 892

WOODWARD PARK HOMEOWNERS ASSOCIATION, INC., et al., Plaintiffs and Appellants, v. CITY OF FRESNO et al. Defendants and Respondents DeWayne Zinkin, Real Party in Interest and Respondent.

No. F049481.

Court of Appeal, Fifth District.

April 13, 2007.

As Modified on Denial of Rehearing May 11, 2007.

Law Offices of Richard L. Harriman and Richard L. Harriman, Fresno, for Plaintiffs and Appellants.

James C. Sanchez, City Attorney, David P. Hale, Chief Assistant City Attorney, Kathryn Phelan, Deputy City Attorney; Burke, Williams & Sorensen, Geralyn L. Skapik, Amy E. Morgan, Riverside, and Stefanie G. Field for Defendants and Respondents.

Motschiedler, Michaelides & Wishon, James A. McKelvey and C. William Brewer, Fresno, for Real Party in Interest and Respondent.

OPINION

WISEMAN, Acting P.J.

This case concerns the City of Fresno's approval of a new commercial development on vacant land near Woodward Park in Fresno. Invoking the California Environmental Quality Act (CEQA), two local organizations asked the superior court to set aside the city's approval. The court declined. We will reverse the superior court's decision. As we will explain, the city's actions violated CEQA and it must do the environmental review process over if it wants to approve the project.

One of CEQA's two major purposes is to require public agencies to adopt feasible mitigation measures to lessen the environmental impacts of the projects they approve. In this case, the project was expected to impact an already congested freeway interchange at State Route 41 and Friant Road. The city calculated a freeway impact fee of the kind frequently imposed on developments in other cities, but throughout almost the entire CEQA review process, the city took the position that it need not impose the fee or any other freeway mitigation measure. It took this position based on a long-standing Fresno policy of approving projects despite unmitigated freeway impacts, a policy apparently arising from the city's dissatisfaction with information provided to it by Caltrans. The policy is illegal because CEQA does not allow agencies to approve projects after refusing to require feasible mitigation measures for significant impacts. If the project went ahead without any freeway traffic mitigation, the driving public would be left "holding the financial bag."

At the last minute, during the city council meeting at which the project was approved, the city decided to accept Zinkin's offer to pay a small freeway-impact fee. The fee was legally inadequate; as we will explain, the amount was not supported by sufficient evidence.

CEQA's other major purpose is to inform the public and decision makers of the consequences of environmental decisions before those decisions are made. In this case, the city's review process failed to inform the public because the two environmental documents the city produced—an environmental impact report and a statement of overriding considerations—were deeply flawed. An environmental impact report, as its name suggests, is meant to report the environmental impacts a project will have. In this case, the environmental impact report usually measured the project's impacts by comparing it to a massive hypothetical office park, instead of comparing it to the vacant land that actually exists at the project site. This hypothetical office park was a legally incorrect baseline which resulted in a misleading report of the project's impacts.

A statement of overriding considerations gives a public agency's reasons for approving a project—its overriding considerations—even though the project will have significant environmental impacts that cannot be substantially lessened by mitigation measures. In this case, the statement of overriding considerations engaged in a serious misrepresentation. It claimed that the proposed project would have economic benefits superior to those of the three alternatives considered in the environmental impact report because those alternatives "generally propose no development or development to a lesser degree." In reality, the three alternatives in the report were as large as or larger than the proposed project, and the record contained no reason to think their economic benefits would be smaller. The real difference was that the proposed project included a shopping center—which was a primary target of many members of the public opposed to the project—while the alternatives had no shopping center or a smaller shopping center, but more office space. The statement of overriding considerations camouflaged this difference by substituting the unsupported claim about economic superiority.

The city's environmental review process failed to satisfy either of CEQA's two main purposes. We will not speculate about why this happened, but a dissenting member of the city council observed at the meeting in which the project was approved that "we're talking about issues that ... a couple of years ago we wouldn't have even discussed like EIR's ... and a developer putting [freeway traffic impact mitigation fee] money into ... Caltrans." If, as this comment suggests, the city's culture of CEQA compliance is only now emerging, it would be a disservice to the public if a project of this magnitude were to go forward based upon a foundation that is so flawed.

FACTUAL AND PROCEDURAL HISTORIES

Real party in interest DeWayne Zinkin, doing business as Zinkin Development Company, LLC (Zinkin), obtained the approval of respondent City of Fresno (the city) to build a development on a 38.93acre parcel located immediately to the east of the intersection of North Friant Road and North Fresno Street, one long block from the interchange between Friant Road and State Route 41. The approved project consisted of 274,000 square feet of office space and a 203,000-square-foot retail shopping center. Zinkin's proposal also tentatively included 20 apartments, but the approval was not conditioned on the inclusion of any apartments in the final plan. The actual number of apartments was to be determined later, when the developer would submit a site plan and apply for a conditional use permit. As the city explains in its brief, "[t]he 20 units mentioned in the application [are] just a `place holder,' included as part of the conceptual plan."

The city's approval of the project was comprised, of several distinct acts. First, the city certified an EIR and a statement of overriding considerations pursuant to CEQA (Pub. Resources Code, § 21000 et seq.).¹ Then a portion of the property previously zoned for office and residential uses was rezoned to permit construction of a shopping center. Finally, the city amended the Fresno General Plan and the Woodward Park Community Plan to permit construction of a shopping center on a portion of the property. The plans previously designated this portion for office development. The approval was subject to a number of conditions in addition to the mitigation measures set forth in the EIR, including approval of a master conditional use permit and a site plan; exclusion of a supermarket (but allowance of a large specialty grocery store); and construction of improvements to the streets bordering the property.

Like all EIRs, the EIR in this case evaluated the environmental impacts of the proposed project by comparing the project's environmental effects with the preexisting environmental baseline at the site without the project. According to the Guidelines for the Implementation of the California Environmental Quality Act (Cal. Code Regs., tit. 14, § 15000 et seq., hereafter Guidelines), the environmental baseline on the basis of which the environmental impacts of the project are to be measured normally is the physical condition of the project site at the time the notice of preparation of the EIR is published. (Guidelines, § 15125, subd. (a).) In this case, the project site was (and still is) a vacant lot.

The EIR does not contain an explicit statement of the baseline it used. In setting forth the project's impacts on air pollution and traffic congestion (the main points at issue in the subsequent litigation), however, the EIR compared the project's impacts with those of a large-scale (more than 600,000 square feet) office and office-related retail development that could be built consistently with the existing zoning and plan designations. The traffic congestion study also examined area traffic without any development on the site (i.e., the traffic presently existing), but the air pollution study compared the proposed project's emissions only with the emissions that would be associated with an office development allowed under existing zoning, not a vacant lot.

In its air pollution discussion, the EIR noted that Fresno County is a nonattainment area (i.e., an area in which regulatory thresholds are exceeded) for ozone and 10-micron particulate matter (referred to as PM₁₀), and that any net increase in these pollutants is considered significant. The EIR compared, on the one hand, emissions of PM₁₀ and ozone precursors (referred to as ROG and NO_x) associated with operating the office project allowable under existing zoning, with, on the other hand, emissions of the same pollutants that would be associated with operating the proposed project. It found that the proposed project "generates slightly more emissions" than the chosen baseline. The EIR then stated (1) that because the project is in a nonattainment area, certain mitigation measures should be incorporated into the project; (2) that a significant, unavoidable impact to NO_x emissions would remain in spite of these measures; and (3) that emissions associated with operating the project would otherwise be insignificant with mitigation. The EIR also called for mitigation measures to limit the emissions of PM₁₀ associated with dust caused by the actual construction of the project, measures it said would render the construction impact insignificant.

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