Reprinted with the permission of LexisNexis.

 

124 Cal. App. 4^th 1184; 22. Cal. Rptr. 3d 203; 2004 Cal. Daily Op. Service 10918; 2004 Daily Journal DAR 14768

 

CERTIFIED FOR PARTIAL PUBLICATION*

 

BAKERSFIELD CITIZENS FOR LOCAL CONTROL, Plaintiff and Appellant,

 

v.

 

CITY OF BAKERSFIELD, Defendant and Respondent; PANAMA 99 PROPERTIES LLC, Real Party in Interest.

 

COURT OF APPEAL, CALIFORNIA, FIFTH DISTRICT

December 13, 2004

 

COUNSEL

Herum Crabtree Brown, Steven A. Herum and Brett S. Jolley for Plaintiff and Appellant Bakersfield Citizens for Local Control.

Jones & Beardsley, Mark A. Jones, Craig N. Beardsley and Christopher Finberg for Real Party in Interest and Appellant Castle & Cooke California, Inc.

Virginia Gennaro, City Attorney; Hogan Guiney Dick and Michael M. Hogan for Defendant and Respondent City of Bakersfield.

Gresham Savage Nolan & Tilden, John C. Nolan and Jennifer M. Guenther for Real Party in Interest Panama 99 Properties LLC.

 

INTRODUCTION

 

Appellant Bakersfield Citizens for Local Control (BCLC) has challenged development of two retail shopping centers in the southwestern portion of the City of Bakersfield (City), alleging violations of the California Environmental Quality Act (CEQA).  The shopping centers are located 3.6 miles apart.[1]  When complete, they will have a combined total of 1.1 million square feet of retail space.  Each shopping center will contain a Wal-Mart Supercenter (Supercenter) plus a mix of large anchor stores, smaller retailers, and a gas station.  An Environmental Impact Report (EIR) was prepared and certified for each project. 

 

In these consolidated appeals we are called upon to assess the sufficiency of the EIR’s.  In the published portion of this opinion, we first determine that BCLC has standing, that it exhausted its administrative remedies and that the appeals are not moot.  We then explain that the EIR’s do not fulfill their informational obligations because they failed to consider the projects’ individual and cumulative potential to indirectly cause urban/suburban decay by precipitating a downward spiral of store closures and long-term vacancies in existing shopping centers.  Furthermore, the cumulative impacts analyses are defective because they did not treat the other shopping center as a relevant project or consider the combined environmental impacts of the two shopping centers.  Finally, we explain that failure to correlate the acknowledged adverse air quality impacts to resulting adverse effects on human respiratory health was erroneous.  These defects are prejudicial and compel decertification of the EIR’s and rescission of project approvals and associated land use entitlements.  In the unpublished portion of this decision, we resolve the rest of the CEQA challenges.

 

FACTUAL OVERVIEW

Real party in interest Panama 99 Properties LLC (P99) is developing a 370,000-square-foot retail shopping center named Panama 99 (Panama) on 35 acres of vacant land located at the northeast corner of Panama Lane and Highway 99.  The project site was zoned for mobile home use and its general plan designation was low-density residential/open space. 

 

Real party in interest and appellant Castle and Cooke Commercial-CA, Inc. (C & C), is developing a 700,000-square-foot regional retail shopping center named Gosford Village (Gosford) on 73 acres of vacant land located on the southwest corner of Pacheco Road and Gosford Road.  The project site’s zoning and general plan land use designation was service industrial. 

 

Panama is located 3.6 miles east of Gosford.  The two shopping centers share some arterial roadway links. 

 

Each shopping center will feature a 220,000-square-foot Supercenter as its primary anchor tenant.  Supercenters “combin[e] the traditional Wal-Mart discount store with a full-size grocery store.”  Supercenters compete with large discount stores, traditional department stores, supermarkets and other grocery stores, as well as drug stores and apparel stores.  The Supercenter at Panama will replace an existing Wal-Mart store that currently is located 1.4 miles north of the Panama site.  In addition to the Supercenter, Panama will contain a Lowe’s Homes Improvement Warehouse (Lowe’s), a gas station and a satellite pad.  Gosford will contain a total of 17 retail stores, plus fast food restaurants and a gas station.  In addition to the Supercenter, there will be six other anchor tenants, including Kohl’s Department Stores (Kohl’s) (apparel and home related items) and Sam’s Club (warehouse club selling groceries and a wide array of consumer products). 

 

P99 and C & C (collectively developers) applied in early 2002 for project approvals and associated zoning changes and general plan amendments.  A separate EIR was prepared for each shopping center (hereafter the Panama EIR and the Gosford EIR).  The Panama EIR concluded that Panama would have significant and unavoidable direct adverse impacts on air quality and noise.  The Gosford EIR concluded that Gosford would have a significant and unavoidable adverse impact on air quality, both individually and cumulatively. 

 

The Panama EIR identified the Supercenter and Lowe’s as the two anchor tenants.  The Gosford EIR did not identify any tenants.  In response to comments questioning the environmental effects resulting from locating two Supercenters in a 3.6-mile radius, the Gosford EIR states that no tenants have been identified.  However, it is clear from the administrative record that prior to certification of the Gosford EIR, the public and the City knew that one of Gosford’s tenants was going to be a Supercenter. 

 

The planning commission and the City Council considered the two projects at the same meetings.  On February 12, 2003, the City Council certified the EIR’s and adopted statements of overriding considerations on the nonpublic consent calendar.  Then, after public hearing, it approved both projects and granted associated zoning changes and general plan amendments. 

 

In March 2003, BCLC filed two CEQA actions challenging the sufficiency of the EIR’s and contesting the project approvals and related land use entitlements (the Panama action and the Gosford action). 

 

Soon thereafter, construction related activities commenced on the project sites.  In July 2003, the trial court denied BCLC’s request for a temporary restraining order enjoining construction related activities at the Gosford site. 

 

Trial was held on the Panama action in November 2003 and on the Gosford action in January 2004.  In both actions, the court concluded that CEQA required study of the question whether the two shopping centers, individually or cumulatively, could indirectly trigger a series of events that ultimately result in urban decay or deterioration. 

 

BCLC unsuccessfully sought a temporary restraining order enjoining construction related activities at the Panama site after the court orally announced its decision in the Panama action. 

 

Argument was held concerning the proper remedy.  The trial court concluded that the failure to study urban decay rendered the EIR’s inadequate as informational documents and it ordered them decertified.  It left the project approvals and associated land use entitlements intact and it severed the Supercenters from the remainder of the projects.  It enjoined further construction of the partially built Supercenter buildings but allowed all other construction activities to continue pending full CEQA compliance.  In its written judgments, the court found the EIR’s deficient because they did not consider the direct and cumulative potential of “the Panama 99 project and the related Gosford Park project” to indirectly cause urban decay.  However, the additional environmental review it ordered focused exclusively on the Supercenters, ordering study of the following two points:  (1) cumulative impacts “on general merchandise businesses” arising from operating both Supercenters; (2) urban decay that could result from closure of the existing Wal-Mart on White Lane. 

 

BCLC partially appealed both judgments; C & C partially cross-appealed the judgment in the Gosford action.  The appeals were consolidated on our own motion. 

 

Previously, we have denied petitions for writ of supersedeas that BCLC filed in March and June of 2004.  Therein, BCLC sought an injunction prohibiting construction related activities on the project sites pending resolution of the appeals.[2]  

 

During the pendency of these actions, the Lowe’s store was constructed and it is operating at Panama.  The Kohl’s store was constructed and it is operating at Gosford.  Sam’s Business Trust acquired a 12-acre parcel at Gosford and we were notified in June 2004 that this entity would seek issuance of a building permit to construct the Sam’s Club.  A group known as Gosford at Pacheco LLC, has purchased 25 acres of the Gosford site.  Both Supercenters are partially constructed. 

 

DISCUSSION

 

At the outset, it is necessary to explicitly reject certain philosophical and sociological beliefs that some of the parties have vigorously expressed.  For the record, we do not endorse BCLC’s elitist premise that so-called “big box” retailers are undesirable in a community and are inherently inferior to smaller merchants, nor do we affirm its view that Wal-Mart, Inc. (Wal-Mart), is a destructive force that threatens the viability of local communities.  Wal-Mart is not a named party in these actions and we rebuff BCLC’s transparent attempt to demonize this corporation.  We do not know whether Wal-Mart’s entry into a geographic region or expansion of operations within a region is desirable for local communities.  Similarly, we do not know whether Wal-Mart is a “good” or a “bad” employer.  We offer no comment on Wal-Mart’s alleged miserly compensation and benefit package because BCLC did not link the asserted low wages and absence of affordable health insurance coverage to direct or indirect adverse environmental consequences. 

 

Likewise, we will not dignify with extended comment C & C’s complaint that BCLC is just a “front” for a grocery worker’s union whose disgruntled members feel threatened by nonunionized Wal-Mart’s entry into the grocery business.  As will be explained, BCLC has standing to pursue this litigation and it exhausted its administrative remedies.  This is sufficient.  We do not know whether Wal-Mart adversely affects the strength of organized labor and we have not considered this question. 

 

In sum, we have no underlying ideological agenda and have strictly adhered to the accepted principle that the judicial system has a narrow role in land use battles that are fought through CEQA actions.  “The only role for this court in reviewing an EIR is to ensure that the public and responsible officials are adequately informed ‘“of the environmental consequences of their decisions before they are made.”’”  (Berkeley Keep Jets Over The Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1356 (Berkeley).) 

 

I.                    Standard of Review 

 

CEQA is codified at Public Resources Code section 21000 et. seq.  CEQA is augmented by the state CEQA Guidelines, codified at title 14 of the California Code of Regulations section 15000 et. seq.[3]  The Guidelines must be interpreted “in such a way as to ‘afford the fullest possible protection of the environment.’”  (Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 868 (Eel River).)  No party has challenged the legality of any of the applicable Guidelines and none of them appear to be “‘clearly unauthorized or erroneous under CEQA.’”  (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. 4 (Laurel Heights II).)  Therefore, we will afford them “‘great weight.’”  (Ibid.) 

 

The applicable standard of review is well established.  If the substantive and procedural requirements of CEQA are satisfied, a project may be approved even if it would create significant and unmitigable impacts on the environment.  (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242.)  “In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion.  (§ 21168.5.)  Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.”  (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 25-26 (Dry Creek).)  Courts are “not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.”  (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391 (Irritated Residents).)  “‘The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it.’”  (Id. at p. 1390.) 

 

“‘The EIR must contain facts and analysis, not just the bare conclusions of the agency.’  [Citation.]  ‘An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’”  (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.)  “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.”  (Dry Creek, supra, 70 Cal.App.4th at p. 26.)  Therefore, “[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.”  (Irritated Residents, supra, 107 Cal.App.4th at p. 1391; §  21005, subd. (b).)  Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decision making and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements.  (Dry Creek, supra, 70 Cal.App.4th at p. 26; Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) 

 

The substantial evidence standard is applied to conclusions, findings and determinations.  It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.  (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1259 (Hillside).)  “Substantial evidence is defined as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’”  (Irritated Residents, supra, 107 Cal.App.4th at p. 1391; Guidelines, § 15384, subd. (a).)  Substantial evidence is not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment is not substantial evidence.  Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.”  (§ 21082.2, subd. (c); Guidelines, § 15384.) 

 

II.  Procedural Issues

 

A.  Standing

 

C & C asserts that BCLC lacks standing because it is an economic competitor and not a bona fide environmental group.  We reject this accusation as unproved speculation.  The record supports the trial court’s determination that BCLC has standing to pursue this litigation.  “CEQA litigants often may be characterized as having competing economic interests.”  (Burrtec Waste Industries, Inc.  v. City of Colton (2002) 97 Cal.App.4th 1133, 1138.)  One of BCLC’s members is a homeowner residing near Gosford and he spoke in opposition to the projects at a public hearing prior to their approval.  This is sufficient to satisfy CEQA’s liberal standing requirement.  (Id. at pp. 1138-1139; Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 272 (Bozung).)  In any event, unions have standing to litigate environmental claims.  (See, e.g., International Longshoremen’s & Warehousemen’s Union v. Board of Supervisors (1981) 116 Cal.App.3d 265.)  Since C & C did not support with legal argument or authority its perfunctory assertion that the trial court erred by quashing a deposition meant to elicit facts about BCLC’s standing, we deem this point to be without foundation and reject it on this basis.  (In re Steiner (1955) 134 Cal.App.2d 391, 399.) 

 

B.      Exhaustion 

 

Next, we reject C & C’s complaint about the timing of BCLC’s objections to the shopping centers.  C & C decries BCLC’s failure to submit written comments on the draft EIR’s and points out that BCLC’s attorney presented his client’s oral and documentary objections to the projects at the public hearing concerning project approvals that was held by the City Council on February 12, 2003.  C & C does not specifically contend with proper legal argument and citation to applicable authority that BCLC failed to exhaust its administrative remedies but this appears to be the implication of its argument.  Although we could dismiss as undeveloped whatever legal point C & C might have intended, we have elected to substantively resolve the exhaustion question because the issue is likely to reoccur. 

 

Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.  Only a proper party may petition for a writ of mandate to challenge the sufficiency of an EIR or the validity of an act or omission under CEQA.  The petitioner is required to have “objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.”  (§ 21177, subd. (b).)  The petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings.  (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894.)  Failure to participate in the public comment period for a draft EIR does not cause the petitioner to waive any claims relating to the sufficiency of the environmental documentation.  (Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1120-1121 (Galante).)  However, the lead agency is not required to incorporate in the final EIR specific written responses to comments received after close of the public review period.  (City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 1043-1044.) 

 

When discussing exhaustion some opinions have identified certification of the EIR rather than approval of the project as the crucial cutoff point.  (See, e.g., Galante, supra, 60 Cal.App.4th at p. 1121.)  However, section 21177 specifically refers to close of the public hearing on project approval prior to issuance of the notice of determination, not certification of the EIR.  (§ 21177, subds. (a) & (b).)  The correct formulation is expressed in Hillside, supra, 83 Cal.App.4th at page 1263:  “[A] party can litigate issues that were timely raised by others, but only if that party objected to the project approval on any ground during the public comment period or prior to the close of the public hearing on the project.” 

 

We believe that the apparent inaccuracy in some case law results from the fact that environmental review is not supposed to be segregated from project approval.  “[P]ublic participation is an ‘essential part of the CEQA process.’”  (Laurel Heights II, supra, 6 Cal.4th at p. 1123.)  Although public hearings are encouraged, they are not explicitly required by CEQA at any stage of the environmental review process.  (Guidelines, § 15087, subd. (i).)  “Public comments may be restricted to written communications.”  (Guidelines, § 15202, subd. (a).)  Yet, “[p]ublic hearings on draft EIRs are sometimes required by agency statute, regulation, rule, ordinance, or the agency’s written procedures for implementation of CEQA.”  (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2004) § 9.26, p. 408 (CEQA Practice).)  “If an agency provides a public hearing on its decision to carry out or approve a project, the agency should include environmental review as one of the subjects for the hearing.”  (Guidelines, § 15202, subd. (b).)  Since project approval and certification of the EIR generally occur during the same hearing, the two events are sometimes treated as interchangeable.  (See, e.g., Hillside, supra, 83 Cal.App.4th at p. 1257 [final EIR certified at same hearing during which project was approved]; Irritated Residents, supra, 107 Cal.App.4th at p. 1389 [same].)  

 

C & C disparagingly refers to BCLC’s oral presentation and its submission of evidence at the February 12, 2003 City Council hearing as a last minute “document dump” and an intentional delaying tactic, pointing out that EIR’s had been certified prior to opening of the public hearing.  We reject this complaint because C & C omitted the key fact that the City had improperly segregated environmental review from project approval in contravention of Guidelines section 15202, subdivision (b).  The planning commission bifurcated the process by agendizing certification of the EIR’s as nonpublic hearing items and separately agendizing project approval and related land use entitlements as public hearing items.  Similarly, the City Council agendized certification of the EIR’s on the closed consent calendar and agendized the “concurrent general plan amendment/zone change[s]” necessary to implement the projects on the public hearing calendar.  Since certification of the EIR’s had been placed on the nonpublic consent calendar that was handled prior to the opening of the public hearing, counsel for BCLC necessarily voiced all of BCLC’s objections, including defects in CEQA compliance, during the hearing on project approvals.  He specifically objected to the bifurcated process and asked for certification of the EIR’s to be removed from the consent calendar and heard concurrently with the hearing on the project approvals and land use entitlements.  The City Attorney recommended against this, incorrectly stating that this “would open up the entire EIR process, open up the new comment period, and delay the entire project because it would not be able to certify the EIR tonight.” 

 

City appears to have thought that the public’s role in the environmental review process ends when the public comment period expires.  Apparently, it did not realize that if a public hearing is conducted on project approval, then new environmental objections could be made until close of this hearing.  (§ 21177, subd. (b); Guidelines, § 15202, subd. (b); Hillside, supra, 83 Cal.App.4th at p. 1263.)  If the decision making body elects to certify the EIR without considering comments made at this public hearing, it does so at its own risk.  If a CEQA action is subsequently brought, the EIR may be found to be deficient on grounds that were raised at any point prior to close of the hearing on project approval. 

 

C & C seems to assume that it was somehow entitled to final project approval in February 2003.  On the contrary, the City Council was not obligated to certify the EIR’s that evening.  “[E]xpediency should play no part in an agency’s efforts to comply with CEQA.”  (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74 (Reasonable Growth).)  As was cogently noted by the trial court, “the public agency decides when they are going to certify the EIR.…  [¶] … [¶] … They didn’t have to do it that night.”  C & C’s complaint that allowing project opponents to raise objections after close of the public comment period for the draft EIR allows them to “sandbag” project proponents and delay certification “ad infinitum” should be presented to the Legislature, for it is a complaint about the design of the CEQA process. 

 

We reject C & C’s related contention that BCLC failed to participate in the public review process prior to certification of the EIR’s because it is factually incorrect.  BCLC actively participated in the administrative review process prior to certification of the EIR’s.  The City Planning Commission accepted public comment concerning the adequacy of the draft EIR’s at a hearing on October 3, 2002.  Sheila Stubblefield, who is described in the minutes of this meeting as BCLC’s president and founder, spoke in opposition to both projects at that meeting.  After the City Planning Commission voted in December 2002 to recommend certification of the EIR’s and approval of the projects, BCLC notified the City in writing that it was appealing the planning commission’s decision.  The issues specifically raised by BCLC in this letter include urban decay and cumulative impacts.  If an EIR is certified by an unelected planning commission, then the lead agency must allow the public an opportunity to appeal the certification to an elected body.  (§ 21151, subd. (c); Guidelines, § 15090, subd. (b); Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525-526.)  BCLC sent a second letter to City before the February 2003 City Council meeting.  It outlined several inadequacies in the EIR’s and raised other objections to approvals of the project.  Then, BCLC’s legal counsel appeared at the City Council meeting and proffered oral and documentary support for BCLC’s previously expressed position that the EIR’s were legally inadequate.  Since the certification of the EIR’s had been placed on the nonpublic consent calendar, he necessarily spoke during the hearing on project approvals. 

 

Finally, we dismiss C & C’s assertion that BCLC only challenged the Supercenter aspect of the shopping centers.  The evidence contradicts this position and demonstrates that BCLC’s objections concerning urban decay and cumulative impacts related to the shopping centers as a whole.  For example, BCLC’s December 2002 letter appealing the decision of the planning commission specifically referenced the addition of over one million square feet of retail space.  Nowhere within this letter did BCLC mention Wal-Mart or the Supercenters.  BCLC’s February 2003 letter also references urban decay as a consequence of the shopping centers and it cites relevant authorities.  The trial court’s oral decisions and written judgments found the EIR’s deficient because they failed to consider whether the shopping centers could indirectly cause urban decay.  It was only the remedy that inexplicably was limited to the Supercenters. 

 

In essence, C & C has imputed bad faith on BCLC’s part without offering any evidence to justify the accusation.  BCLC actively and properly participated in the administrative review process.  It did not contravene CEQA by challenging the adequacy of the EIR’s at the February 2003 City Council meeting and submitting evidence supporting their position.  There is no indication in the record that if the City had seriously considered the objections asserted by BCLC and others and if it had revised the EIR’s in response to these objections, BCLC subsequently would have asserted new inadequacies solely to delay the projects.  It is the City’s bifurcated process, which resulted in segregation of environmental review from project approval, that supports an imputation of bad faith, an inference BCLC civilly does not press. 

 

C.      Mootness

 

Developers achieved an important practical victory when they convinced the trial court to leave the project approvals in place, sever the Supercenters from the remainder of the projects and allow construction of the rest of the shopping centers to proceed prior to full CEQA compliance.  As a result, retail businesses currently are operating at both project sites and nonparties have acquired portions of the project sites.  This has generated substantial economic and psychological pressures in favor of the shopping centers as presently approved and partially constructed.  BCLC cannot provide any precedent for closure of an operating retail establishment because the retailer’s landlord failed to adequately comply with CEQA and it has not asked us to order these businesses to cease operations pending full CEQA compliance.  Given this state of affairs, questions necessarily arise concerning redressability and consequent mootness.  Has the danger of irreversible momentum in favor of the shopping centers, about which we warned in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 at page 742 (Raptor), been realized?  

 

Undoubtedly some would view further environmental study of the partially completed projects as a futile waste of time and money.  Since CEQA’s purpose is not to generate meaningless paperwork (Bozung, supra, 13 Cal.3d at p. 283), we were tempted to find the alleged defects in CEQA compliance essentially nonredressable and therefore moot.  Yet, after reviewing briefing on this question, we decided not to adopt this rather cynical position.  For the following reasons, we have concluded that the CEQA issues remain viable and therefore, we decline to dismiss the appeals as moot. 

First, developers expressly recognized that they were proceeding at their own risk when they relied on the contested project approvals during the pendency of this litigation.  When an injunction is not granted after commencement of a CEQA action, the agency is to assume that the contested EIR or negative declaration satisfies CEQA’s requirements.  However, “[a]n approval granted by the responsible agency in this situation provides only permission to proceed with the project at the applicant’s risk prior to a final decision in the lawsuit.”  (Guidelines, § 15233, subd. (b).)  Although BCLC’s failure to diligently and expeditiously seek injunctive relief necessitated our denial of its belated pleas for issuance of extraordinary relief pending issuance of this opinion, it did not provide developers with a “pass” on full CEQA compliance or grant them any vested interest in improvements that were completed at their own risk.  The sale or lease of land to third parties was beyond BCLC’s control.  Such third party transactions do not immunize defective land use approvals.  As a matter of public policy and basic equity, developers should not be permitted to effectively defeat a CEQA suit merely by building out a portion of a disputed project during litigation or transferring interests in the underlying real property.  Failure to obtain an injunction should not operate as a de facto waiver of the right to pursue a CEQA action.

 

Second, questions concerning urban decay and cumulative impacts constitute important issues of broad public interest that are likely to reoccur.  (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) 

 

Finally, even at this late juncture full CEQA compliance would not be a meaningless exercise of form over substance.  The City possesses discretion to reject either or both of the shopping centers after further environmental study and weighing of the projects’ benefits versus their environmental, economic and social costs.  As conditions of reapproval, the City may compel additional mitigation measures or require the projects to be modified, reconfigured or reduced.  The City can require completed portions of the projects to be modified or removed and it can compel restoration of the project sites to their original condition.  (Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 641; Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888-890.)  We presume that the City will fully and sincerely assess the new information contained in the revised EIR’s and that it will fairly and independently decide whether reapproval of the projects is in the best interests of the City’s residents, giving no weight to the fact that the shopping centers are partially constructed. 

 

III.                Urban Decay

 

Water contamination and air pollution, now recognized as very real environmental problems, initially were scoffed at as the alarmist ravings of environmental doomsayers.  Similarly, experts are now warning about land use decisions that cause a chain reaction of store closures and long-term vacancies, ultimately destroying existing neighborhoods and leaving decaying shells in their wake.  In this case, the trial court recognized that the shopping centers posed a risk of triggering urban decay or deterioration[4] and it concluded that CEQA required analysis of this potential impact.  C & C has challenged this determination.  We find C & C’s arguments unpersuasive and agree that CEQA requires analysis of the shopping centers’ individual and cumulative potential to indirectly cause urban decay.

 

Guidelines section 15126.2 requires an EIR to identify and focus on the significant environmental impacts of the proposed project.  In relevant part, this section provides:  “Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects.”  (Guidelines, § 15126.2, subd. (a).)  Guidelines section 15064, subdivision (d) mandates that both primary (direct) and “reasonably foreseeable” secondary (indirect) consequences be considered in determining the significance of a project’s environmental effect.  

 

“CEQA is not a fair competition statutory scheme.”  (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1235.)  Therefore, the economic and social effects of proposed projects are outside CEQA’s purview.  (Guidelines, § 15131, subd. (a).)  Yet, if the forecasted economic or social effects of a proposed project directly or indirectly will lead to adverse physical changes in the environment, then CEQA requires disclosure and analysis of these resulting physical impacts.  (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1019 (Friends of Davis); Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, 445-446 (Mt. Shasta).)  Subdivision (e) of Guidelines section 15064 provides that when the economic or social effects of a project cause a physical change, this change is to be regarded as a significant effect in the same manner as any other physical change resulting from the project.  (See, e.g., El Dorado Union High School Dist. v. City of Placerville (1983) 144 Cal.App.3d 123, 131 [potential of increased student enrollment in an already overcrowded school resulting from construction of the proposed apartment complex was an environmental effect that required treatment in an EIR because it could lead to the necessity of constructing at least one new high school].)  Conversely, where economic and social effects result from a physical change that was itself caused by a proposed project, then these economic and social effects may be used to determine that the physical change constitutes a significant effect on the environment.  (See, e.g., Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 197 [when a waste management facility was proposed next to a religious retreat center, CEQA required study whether the physical impacts associated with the new facility would disturb worship in the natural environment of the retreat center].)  Guidelines section 15131, subdivision (a) provides, “An EIR may trace a chain of cause and effect from a proposed decision on a project through anticipated economic or social changes resulting from the project to physical changes in turn caused by the economic or social changes.  The intermediate economic or social changes need not be analyzed in any detail greater than necessary to trace the chain of cause and effect.  The focus of the analysis shall be on the physical changes.” 

 

Case law already has established that in appropriate circumstances CEQA requires urban decay or deterioration to be considered as an indirect environmental effect of a proposed project.  The relevant line of authority begins with Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151 (Bishop).  There, the appellate court held that adoption of multiple negative declarations for different aspects of the same large regional shopping center violated CEQA.  (Id. at p. 167.)  The court also agreed with appellant that on remand “the lead agency must consider whether the proposed shopping center will take business away from the downtown shopping area and thereby cause business closures and eventual physical deterioration of downtown Bishop.”  (Id. at p. 169.)  Citing Guidelines section 15064, the court found that the lead agency had an affirmative duty to consider whether the new shopping center would start an economic chain reaction that would lead to physical deterioration of the downtown area.  (Id. at p. 170.)  Therefore, “[o]n remand the lead agency should consider physical deterioration of the downtown area to the extent that potential is demonstrated to be an indirect environmental effect of the proposed shopping center.”  (Id. at p. 171.)

 

Next, Mt. Shasta, supra, 198 Cal.App.3d 433, invalidated an EIR for a proposed shopping center for numerous reasons.  In relevant part, the court determined that the EIR was defective because it failed to “consider the potential physical effect of the rezoning on the central business area.  The EIR pointed out the proposed project may pose a significant economic problem for existing businesses, but offered little analysis of the issue.”  (Id. at p. 445.)  The court rejected respondent’s justification that “no analysis of economic effects was required in the EIR.”  (Id. at p. 446.)  Citing Bishop, supra, 172 Cal.App.3d 151 and Guidelines section 15064, it explained that “[t]he potential economic problems caused by the proposed project could conceivably result in business closures and physical deterioration of the downtown area.  Therefore, on remand, City should consider these problems to the extent that potential is demonstrated to be an indirect environmental effect of the proposed project.”  (Mt. Shasta, supra, 198 Cal.App.3d at p. 446.) 

 

City of Pasadena v. State of California (1993) 14 Cal.App.4th 810 addressed this issue as part of its determination whether a project to relocate a parole office was exempt from CEQA.  In assessing whether the significant effect exception applied, the court discussed Bishop, supra, 172 Cal.App.3d 151.  It agreed that social and economic effects must be considered if they will cause physical changes but found Bishop distinguishable because appellant in this case had not made a “showing or argument that [relocation of the parole office] would cause the physical deterioration of the area.”  (Id. at p. 828.) 

 

Friends of Davis, supra, 83 Cal.App.4th 1004 (distinguished, post) rejected the position that identification of a Borders bookstore as a prospective tenant in a retail development compelled supplemental environmental review.  There, the City of Davis (Davis) certified an EIR for a specific plan that reflected designation of the subject property for retail use.  The applicant subsequently acquired an option to purchase the property and applied for design review of a proposed retail development that conformed to the specific plan and current zoning designation.  During the design review process, it was revealed that one of the tenants would be a Borders bookstore.  Davis planning staff took the position that the design review process did not differentiate between one type of retail tenant and another.  Over objection from citizens who sought to use the design review ordinance to exclude Borders from locating in Davis, the planning commissions’ decision to approve the design review application was upheld.  The appellate court agreed with Davis, carefully explaining that it was “not reviewing the record to determine whether it demonstrates a possibility of environmental impact, but are viewing it in a light most favorable to the City’s decision in order to determine whether substantial evidence supports the decision not to require additional review.”  (Id. at p. 1021.)  Prior environmental review already encompassed retail use of the property.  A subsequent EIR was not required merely because it “appears likely” that Borders would compete with existing bookstores.  (Ibid.)  Appellant had not presented any evidence supporting its assumptions “that existing downtown bookstores will not be able to compete with Borders and will close[,] … that the bookstores will not be replaced by new or different businesses …[and] that the bookstore closures will cause other downtown businesses to close, thus leading to a general deterioration of the downtown area.”  (Ibid.) 

 

Most recently, it was held that the project description for a proposed warehouse distribution center did not have to specifically identify the end user because this information did not implicate new or different environmental effects other than those that had been addressed in the EIR.  (Maintain Our Desert Environment v. Town of Apple Valley (2004) 120 Cal.App.4th 396 (Apple Valley).)

 

It is apparent from the case law discussed above that proposed new shopping centers do not trigger a conclusive presumption of urban decay.  However, when there is evidence suggesting that the economic and social effects caused by the proposed shopping center ultimately could result in urban decay or deterioration, then the lead agency is obligated to assess this indirect impact.  Many factors are relevant, including the size of the project, the type of retailers and their market areas and the proximity of other retail shopping opportunities.  The lead agency cannot divest itself of its analytical and informational obligations by summarily dismissing the possibility of urban decay or deterioration as a “social or economic effect” of the project. 

 

C & C contends that study is not required because the record does not contain substantial evidence proving that the shopping centers will cause urban decay.  This argument founders because it is premised on the wrong standard of review.  Substantial evidence is the standard applied to conclusions reached in an EIR and findings that are based on such conclusions.  (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.)  BCLC is not challenging a conclusion in the EIR’s that the shopping centers would not indirectly cause urban decay or a finding adopted by the City.  It is not arguing that the City used the wrong methodology in assessing whether urban decay will be an indirect effect of the project or challenging the validity of an expert’s opinion on this topic.  Rather, BCLC’s argument is that the EIR’s failed to comply with the information disclosure provisions of CEQA because they omitted any meaningful consideration of the question whether the shopping centers could, individually or cumulatively, trigger a series of events that ultimately cause urban decay.  Neither EIR even contains a statement indicating reasons why it had been determined that urban decay was not a significant effect of the proposed projects.  (§ 21100, subd. (c).)  BCLC is challenging the City’s view that such an analysis was purely economic and therefore was outside the scope of CEQA.  The substantial evidence standard of review is not applied to this type of CEQA challenge.  The relevant question is whether the lead agency failed to proceed as required by law.  (1 Kostka & Zischke, CEQA Practice, supra, § 12.5, pp. 464-466.1.)  “[A]lthough the agency’s factual determinations are subject to deferential review, questions of interpretation or application of the requirements of CEQA are matters of law.  [Citations.]  While we may not substitute our judgment for that of the decision makers, we must ensure strict compliance with the procedures and mandates of the statute.”  (Save Our Peninsula Committee v. Monterey County Bd. Of Supervisors (2001) 87 Cal.App.4th 99, 118 (Peninsula).)  If C & C is contending that claims concerning omission of information from an EIR essentially should be treated as inquiries whether there is substantial evidence supporting the decision approving the projects, we reiterate our rejection of this position for the reasons previously expressed in Irritated Residents, supra, 107 Cal.App.4th at page 1392. 

 

In any event, C & C’s position has no substantive merit.  There is a great deal of evidence in the record supporting the validity of concerns that the shopping centers could cause a ripple of store closures and consequent long-term vacancies that would eventually result in general deterioration and decay within and outside the market area of the two shopping centers.  Although much of BCLC’s evidence specifically applied to the Supercenters, the administrative records as a whole contain sufficient indication that addition of 1.1 million square feet of retail space in the shopping centers’ overlapping market areas could start the chain reaction the ultimately results in urban decay to necessitate study of the issue with respect to the entirety of the shopping centers. 

 

First, BCLC retained a professor of economics at San Francisco State University, C. Daniel Vencill, to study the cumulative economic effects that will be caused by the two new Supercenters (the Vencill report).  Together with two colleagues, Vencill reviewed literature and analyzed the five-mile area surrounding the project sites.  Photographs were taken of the sites and “existing blight conditions which have remained unabated for some years in the area surrounding the proposed new sites” were documented.  The Vencill report determined that the two shopping centers are in the same shopper catchment area and they will be competing with each other as well as with existing retail establishments.  It states that “[t]here are [four] existing shopping centers and malls that will be adversely affected by [Gosford and Panama].  One regional mall is suspected of being in serious decline.”  The two Supercenters represent significant excess capacity as configured and located.  “This will result in oversaturation and fall-out of weaker competitors in the at-risk commercial blight zone the developments will create.”  The Vencill report identified 29 businesses, primarily but not exclusively grocery stores, that are at direct risk of closure.  Two Albertsons are “facing extinction” and a small nursery that is located across the street from Gosford “would certainly become defunct.”  Additionally, no “alternative plans” were observed for the Wal-Mart building on White Lane that will be vacant when this Wal-Mart store is replaced by the Supercenter at Panama.  The Vencill report finds:

“It is reasonably probable [that] competition provided by the two proposed [Supercenters] (i.e., the diversion of existing sales from local merchants), individually and especially cumulatively, will have economic impacts on existing businesses triggering a chain of events that may lead to adverse effects on the physical environment in the southern part of Bakersfield.  One of the ways this may occur is that smaller retailers in the area, particularly those located within five miles of the sites, and even more specifically those retailers already struggling or on the verge of having to terminate operations, will be unable to compete and will have to go out of business.  In turn, this may cause permanent or long-term vacancies of retail space in the area.  The result is typically neglect of maintenance and repair of retail facilities, the deterioration of buildings, improvements, and facilities.  This may then culminate in physical effects associated with blight-like conditions, which include visual and aesthetic impacts accompanying the physical deterioration.” 

 

BCLC also submitted numerous studies and articles analyzing the adverse effects other communities in California (San Diego, Orange County and Calexico,) and elsewhere (Oklahoma City, Oklahoma; Bath, Maine; Eastern Pennsylvania; Chicago, Illinois; Syracuse, New York) have experienced as a result of saturation of a market area with super-sized retailers.[5]  As relevant here, the authors found numerous adverse effects resulting from saturation of a market area with Supercenters and similar retail facilities, such as SuperTargets and SuperKmarts.  These effects include, but are not limited to, physical decay and deterioration resulting from store closures in the same market area or in established areas of the community (i.e., the “traditional downtown area”) due to competitive pressures, followed by an inability to easily re-lease the vacated premises.  The authors also found that it had been difficult to find tenants for buildings that formerly housed Wal-Mart stores that were replaced by the new Supercenters.  Many of the empty buildings physically deteriorated. 

 

This evidence cannot be cavalierly dismissed as “hit pieces” designed to disparage a specific corporation.  Studies discussing the experiences of other communities constitute important anecdotal evidence about the way the proposed shopping centers could serve as a catalyst for urban deterioration and decay in the City.  The Vencill report is extremely significant and it strongly supports BCLC’s position that CEQA requires analysis of urban decay.[6]  

 

Moreover, numerous individuals commented about urban decay during the administrative process.  For example, at the planning commission’s public hearing on the adequacy of the draft EIR’s, Cindy Fabricius stated, “[T]here are 45 empty Wal-Marts in the state of Texas.  There are 34 empty standing Wal-Marts in the state of Georgia.  There are 27 in Utah.  Find them.  Go look at them.  They are empty.  When Wal-Mart moves on they leave their boxes.  Those boxes are not bought up by other [businesses]; who can afford that huge of a store; that huge of a rent?”  Herman Lee commented that there are parts of East Bakersfield that need revitalization.  Yet, the proposed shopping centers are out in the southwest part of town.  He queried, “What about the people on the east side of town?”  Some comments made at the February 2003 City Council meeting are also relevant.  A representative of Save Mart Supermarkets spoke in opposition to the project and submitted the data concerning Oklahoma City.  He stated that the addition of the two shopping centers will adversely affect existing shopping centers and asserted that the “[t]he potential for urban blight and decay is a matter which must be considered” in the EIR