Reprinted with the permission of LexisNexis.
122 Cal. App. 4th 1341; 19 Cal. Rptr.
3d 445; 2004 Cal. App. LEXIS 1672; 2004 Cal. Daily Op. Service 9038;
2004 Daily Journal DAR 12345; 34 ELR 20112
EL MORRO COMMUNITY ASSOCIATION et al.,
Plaintiffs and Appellants,
v.
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION et al., Defendants and
Respondents.
COURT OF APPEAL OF CALIFORNIA,
FOURTH DISTRICT, DIVISION THREE
October 5, 2004,
Filed
COUNSEL
Moskowitz, Brestoff, Winston & Blinderman,
Nelson E. Brestoff; Van Blarcom,
Leibold, McClendon & Mann, John G. McClendon and
Stephen M. Miles for Plaintiffs and Appellants.
Bill Lockyer,
Attorney General, Mary Hackenbracht, Assistant
Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendants
and Respondents.
OPINION
O'LEARY, J.--The El Morro Community Association (EMCA)
and The Wise Use Front (WUF) appeal from a judgment denying their petition for
a writ of mandate to compel the California Department of Parks and Recreation
(the Department) to rescind its certification of the environmental impact
report (EIR) for a project located within Crystal Cove State Park. The project
involves demolition of a private beachfront mobile home park (upon the
impending expiration of the residents' leases) and conversion of the site to
public facilities including a campground, parking, and picnic areas. EMCA is a
mutual benefit corporation composed of current residents of the mobile home
park. WUF is an unincorporated association comprised of current mobile home
park residents and other individuals who are "interested" in the use
of public trust resources. n1 EMCA contends the Department abused its
discretion by not proceeding according to law in preparing and certifying the EIR, thus violating the requirements of
the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000
et seq.), n2 and the trial court abused its discretion by not permitting the
augmentation of the administrative record. We find no error and affirm the
judgment.
I
We begin, as most CEQA cases do, with a
description of the proposed project that is the subject of the current
controversy along with some pertinent historical background. More details will
be discussed in the course of our discussion of the issues.
In 1982, the Department adopted the general
plan for Crystal Cove State Park. The park, acquired by the Department beginning in 1979 through a
combination of purchase and gift, consists of approximately 2,800 acres of
predominately undeveloped natural land including about three miles of
coastline. The park is bisected by the Pacific Coast Highway (PCH). The inland area of about 2,343
acres is basically (for ease of discussion) on the north side of PCH, and is essentially comprised of
the entire watershed of Moro Canyon--the predominate physical feature of the
inland part of the park. The coastal strip of about 448 acres is on the south
side of PCH and contains bluff areas and several beaches.
When acquired by the Department, the park
had two developed areas on or near the coastal strip: Crystal Cove Historical
District to the west (i.e., up coast) and the 287-unit El Morro
Mobile Home Park to the east (i.e., down coast). The Department acquired the
lands subject to existing leaseholds on those two developments. The general
plan envisioned the eventual elimination of the private use of these two
residential areas and their conversion to public uses--predominately day uses.
As to the area surrounding the mobile home park, the general plan explained the
area's two beaches, Moro Cove and Reef Point, were expected to support the
highest intensity of beach-related uses. The general plan specifically
mentioned that after the eventual demolition of the mobile home park, the area
would be developed with parking areas, bathrooms, picnic facilities, and a
portion of the mobile home park site would be developed with a campground for
recreational vehicles and tent camping.
When the Department acquired the mobile
home park, the tenants waived their rights to relocation benefits in exchange
for 20-year leases with only nominal rent increases to keep up with inflation.
The leases were extended for another five years and will expire in December
2004. Only about 10 percent of the units are currently owned or lived in by the
lessees who signed the original long-term leases with the state.
The project area in its current state is
described in the draft EIR (DEIR) that began circulating in
May 2002. The major current features of the site are the mobile home park and
an existing elementary school. The mobile home park is bisected by PCH. The elementary school is on the
inland side of PCH, up coast from and adjacent to the mobile home park. Up coast from the
elementary school is the current signalized park entrance road that leads to an
existing inland visitor day use parking area, bathrooms, and visitor center
(primarily accessing hiking and mountain bike areas). The proposed new
facilities will all be on the footprint of the existing mobile home park. The elementary
school will remain essentially untouched (save for some improved access and
fencing).
The majority of the mobile home park units
are on the inland side of PCH divided into two physical
areas--the upper terrace (located at a slightly higher elevation on a bit of a
bluff), and Moro Creek Valley (as the name implies, the valley area through
which Moro Creek runs after it leaves Moro Canyon). Most of the inland mobile
home units are up coast from Moro Creek, but a few are below the creek. Moro
Creek runs through the mobile home park and drains to the ocean through a
tunnel going under PCH (the Moro Creek Tunnel). The Morro Creek
Tunnel has historically been the primary method for pedestrians to access the
beach from the inland part of the mobile home park. The rest of the mobile home
park units are on the coastal strip down coast of Moro Creek--a strip of mobile homes
running down the beach to the park boundary. The current entrances for both
sides of the mobile home park are basically at the area of the tunnel.
The "preferred alternative"
project described by the DEIR, involves the approximately 45-acre footprint of
the mobile home park. Upon expiration of the current leases (which require the
tenants to remove the mobile homes), any remaining mobile home park buildings
will be demolished and removed. Much of the site will be restored to a natural
condition. The existing mobile home park sewage system is a septic system with
leach fields bordering Moro Creek. It will be replaced with a municipal sewer connection.
Other utilities will be abandoned or upgraded to support the new facilities.
The project will have its main entrance at the current signalized entrance road
up coast from the elementary school. The entrance road turns behind the school
with the new park entrance inland of the school. The upper terrace part of the
mobile home park will be converted into a 60-site campground, two combination
restroom/shower buildings, and a laundry room. An entrance building, restrooms,
visitor parking, and a dump station will be built on the inland side of the
campground. The road from the campground will lead down into the Moro Creek Valley where an area will be regraded to create
access and parking for 196 vehicles. Additionally, a small amphitheater, two
restroom buildings, and three group picnic areas will be built up coast from
Moro Creek. A large outdoor area down coast from the creek will be landscaped
with native plants as an "outdoor classroom." The creek itself will
be restored to a more natural streambed, with a new pedestrian/service vehicle
bridge being built over the creek near PCH (inland). In addition to the
existing tunnel that provides beach access, a new traffic signal (at the
current mobile home park entrance) was proposed to allow pedestrians to cross PCH to the beach. (More on this anon.)
On the coast side of the project, at Moro Beach, after removal of the mobile home park structures, the site will be
restored. One public restroom, a lifeguard tower/office, and 20 portable picnic
sites will be constructed.
The EIR/Project
Approval Procedure
In November 2001, the Department sent the
notice of preparation of the DEIR to the requisite agencies. The notice of
preparation and the DEIR identified Tina Robinson located at the Department's San Diego office as the contact person. The DEIR was completed on May 7, 2002, and circulated for public comments for 45 days. The public comment
period closed on June 21. On August 13, the Department filed the notice of
determination. The notice was signed by Bill B. Berry, Jr., the Deputy Director
of Operations for the Department. The notice stated the Department had approved
the project (i.e., the mobile home park conversion), the Department had
reviewed the final EIR and in approving the project made the following findings: "[t]he
project will not have a significant effect on the environment after
mitigation[]" and "[an EIR] has been completed in compliance
with CEQA, and has been presented to the decision-making body of this
Department for its independent review and consideration of the information
contained in the final EIR prior to approval of the
project." It also stated mitigation measures were made conditions of the
project and findings were made on the environmental effects of the project.
On September 12, 2002, EMCA filed its petition for writ of mandate naming as defendants the
Department, Ruth Coleman (Acting Director of the Department), and Deputy
Director Berry. n3 Following a hearing on August 15, 2003, the petition was denied, judgment entered for the Department, and this
appeal ensued.
II
Standard of Review
Because the Department's approval of the
project did not require a public hearing, n4 our review is governed by section
21168.5. That section provides, "In any action or proceeding ... to attack,
review, set aside, void or annul a determination, finding, or decision of a
public agency on the grounds of noncompliance with [CEQA], the inquiry shall
extend only to whether there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substantial
evidence." In this case those questions revolve around the EIR. " 'An EIR is an informational document which
provides detailed information to the public and to responsible officials about
significant environmental effects of a proposed project. [Citations.] It must
contain substantial evidence on those effects and a reasonable range of
alternatives, but the decision whether or not to approve a project is up to the
agency. [Citations.]' [Citation.] Review is confined to whether an EIR is sufficient as an informational
document. 'The court must uphold an EIR if there is any substantial
evidence in the record to support the agency's decision that the EIR is adequate and complies with CEQA.
[Citation.] [P] 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.' [Citation.]" (Defend The Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1265 [15 Cal. Rptr. 3d 176].)
III
The Decision Maker
EMCA contends the Department failed to
proceed in the manner required by law because the EIR was not certified by the
"decision maker," rather certification of the EIR was illegally delegated to a mere
staff member, i.e., Deputy Director Berry. The contention is without merit.
The Guidelines require that prior to
approval of a project, the lead agency (in this case the Department) shall
certify: "(1) The final EIR has been completed in compliance
with CEQA; [P] (2) The final EIR was presented to the decisionmaking body of the lead agency, and
that the decisionmaking body reviewed
and considered the information contained in the final EIR prior to approving the project; and
[P] (3) The final EIR reflects the lead agency's independent judgment and analysis."
(Guidelines, § 15090(a), italics added.) The notice of determination, signed by
Deputy Director Berry, contained the appropriate certifications. In its answer
to the petition, the Department admitted Deputy Director Berry was the person
authorized by the Department to certify the EIR. EMCA argues Deputy Director Berry
simply cannot be the legal "decision maker" because he is not a decisionmaking body, but merely an unelected official
"with no accountability to the public."
Guidelines section 15356 specifically
defines the "decision-making body" as "any person or
group of people within a public agency permitted by law to approve or
disapprove the project at issue." (Italics added.) The Department does not
have an elected body that acts as its decision maker. Rather, the Department is
controlled by an executive officer (the Director), who is appointed by the
Governor subject to confirmation by the Senate. (§ 501.) The Department alone
has the authority to "administer, protect, develop, and interpret the
property under its jurisdiction for the use and enjoyment of the public."
(§ 5003.) Because the Department acts through the Director, or his or her
designee (§ 546), then a fortiori the Director, or his or her designee, is the
"decision-making body" within the meaning of CEQA.
EMCA argues the State Parks and Recreation
Commission (the Commission) is the "decision-making body" within the
meaning of CEQA that must approve the project. Not so. The Commission, also
appointed by the Governor (§ 530), has responsibility for "establish[ing] general policies for the guidance of the director in
the administration, protection, and development of the state park system."
(§ 539.) Additionally, the Commission sets a "comprehensive recreational
policy" for the state. (§ 540, subd. (b).) But
it is the Department that executes those policies, and the Director (or his or
her designee) is the person with the power to approve specific projects in
furtherance of the Commission's policies. Furthermore, we note when a project
is approved by a local lead agency and the CEQA determination is made by
"a nonelected decisionmaking
body ... that certification, approval, or determination may be appealed to the
agency's elected decisionmaking body, if any."
(§ 21151, subd. (c).) But there is no comparable
requirement contained in the CEQA provisions relating to approval of a project
by a state agency. (See §§ 21100-21108.)
Deputy Director Berry signed the notice of
determination certifying the EIR had been presented to the
"decision-making body," (i.e., the Department) independently
reviewed, and considered prior to approval of the project. In their answer to
the petition, the Department, Director Coleman, and Deputy Director Berry
stated Deputy Director Berry was the person authorized to approve the project
and certify the EIR, i.e., he was the Director's designee.
EMCA's reliance upon Sundstrom
v. County of Mendocino (1988) 202 Cal. App. 3d 296 [248
Cal. Rptr. 352], and Kleist
v. City of Glendale (1976) 56 Cal. App. 3d 770 [128
Cal. Rptr. 781], is misplaced. In Keist, a city council improperly delegated the task
of certifying EIRs to a specially created board,
prior to approval of the project by the city council. (Id. at p. 779.)
In Sundstrom, supra, 202 Cal. App. 3d 296, a
county board of supervisors improperly delegated preparation of the
environmental documents to the applicant, subject to review by planning staff.
In short, those cases hold the decision maker may not delegate CEQA approval to
a non-decision maker. But there has been no improper delegation here. Deputy
Director Berry was the Director's designee to approve the project, and
accordingly, he was the appropriate person to certify the EIR.
In its reply brief, EMCA takes a different
tack. It argues there is insufficient evidence that Deputy Director Berry was
in fact authorized by the Director to approve the project (and accordingly to
certify the EIR). Furthermore, it argues there is no substantial evidence Deputy
Director Berry in fact did what the notice of determination said he did, i.e.,
there is no evidence he in fact independently reviewed the EIR or supporting technical documents
prior to approving the project.
The point is waived. Although the petition
contained allegations the EIR was not certified by the
"decision-making body," EMCA omitted this issue from its statement of
issues it intended to raise at trial. (§ 21167.8, subd.
(f) [each party must file and serve statement of issues it intends to raise at
hearing or trial].) EMCA did not pursue the issue at the hearing. "It is
well established that a party may not raise new issues on appeal not presented
to the trial court. [Citation.]" (A Local & Regional Monitor v. City
of Los Angeles (1993) 12 Cal.App.4th 1773, 1804 [16 Cal. Rptr. 2d 358].) EMCA cannot now contend Deputy Director
Berry was not the Director's duly authorized designee with respect to this
project when it failed to raise the argument below.
EMCA argues waiver is inapplicable because
the new issue involves "purely a question of law based upon uncontroverted facts and involving important questions of
public policy ... ." (A Local & Regional Monitor v. City of Los
Angeles, supra, 12 Cal.App.4th at p. 1804, fn. 13.) That simply is not the
case here. In signing the notice of determination, Deputy Director Berry
certified the appropriate decision maker had reviewed it. In their answer to
the petition, the Department, the Director, and Deputy Director Berry confirmed
Deputy Director Berry was the authorized decision maker.
In any event, EMCA's
argument fails because it has failed to prove Deputy Director Berry was not the
authorized decisionmaker or that he failed to carry
out his duties. There is a statutory presumption that an official duty has been
regularly performed. (Evid. Code, § 664.) The law
requires the "decision-making body" to independently review the EIR and consider the information
therein prior to final approval of the project. The notice of determination
states this was done. EMCA has offered nothing other than its sheer speculation
to suggest otherwise.
IV
Technical Reports
EMCA argues the Department failed to
proceed in a manner required by law because the DEIR did not adequately cite
the various technical studies and reports used in its preparation. We find no
reversible error.
EMCA criticizes the DEIR's
failure to rigidly adhere to Guidelines section 15148, which provides,
"Preparation of EIRs is dependent upon
information from many sources, including engineering project reports and many
scientific documents relating to environmental features. These documents should
be cited but not included in the EIR. The EIR shall cite all documents used in
its preparation including, where possible, the page and section number of any
technical reports which were used as the basis for any statements in the EIR."
The introduction to the DEIR's
discussion of the environmental effects of the preferred alternative project
and the proposed mitigation measures states, "This section describes the
probable impacts of the Preferred Alternative [i.e., the campground conversion
project]. The environmental impact analysis and the proposed mitigation
measures are based on preliminary project design and current information and
circumstances. Technical reports and analyses were prepared as part of the
environmental studies for the proposed action. These reports analyze
existing conditions and identify potential impacts for the Preferred
Alternative. This section summarizes the findings of these reports and analyses
and incorporates information that may be more current [than] the information
contained in the technical studies. The following studies were conducted for
this EIR: wave runup analysis, biology report and
natural resources constraints analysis, cultural resources constraints
analysis, hydraulic study, traffic analysis, and preliminary geotechnical
studies." (Italics added.) The DEIR did
not give the specific title for each report nor did it include the reports as appendices.
Several reports and studies were prepared
as part of the environmental review process. They included the following: (1) a
seven page "Natural Resource Constraints Analysis" prepared in July
2001 by the Department, described specific areas of the project where sensitive
wildlife species (e.g., birds) existed, and identified design and construction
constraints that should be put in place in order to minimize impacts on the
sensitive wildlife (such as no construction activities during nesting season);
(2) a three page "Cultural Resources Constraints Analysis" prepared
by the Department in August 2001, identified three culturally sensitive areas
within the project (two middens, one archeological
site), and set forth constraints to be placed on the project and construction
to avoid disturbing the CSAs (e.g., limiting
construction staging sites, capping the archeological site, fencing the midden areas during construction, monitoring construction
activities); (3) a 12 page "Biological Resources Report" prepared by
a Department biologist in October 2001 (sometimes called the "Roja Report"), detailed the biological resources
within the project; (4) a "Signal Warrant Analysis" was prepared by
RBF, a private consulting firm, on March 7, 2002, concerned the proposed
signalization of PCH at the Moro Creek Tunnel, contained
technical information on the projected pedestrian crossings, and conducted the CalTrans signal warrant analysis to determine if a signal
was warranted; and (5) a "Wave Runup
Analysis" was prepared by Skelly Engineering on
February 13, 2002, which set forth technical data on historical wave and tide
height, and water overrun onto road and the proposed lifeguard station, for
engineering purposes. The substance of the reports is summarized in the DEIR.
During the public review period, counsel
for EMCA wrote to the individual designated in the DEIR as the Department's
contact person (Ms. Robinson), and complained about the failure of the DEIR to
specifically reference each of the technical reports. The Department responded
with a list of the reports, and advised EMCA they were available for public
review in the Department's San Diego office. In a subsequent letter, EMCA acknowledged it had obtained
copies of all the technical reports and studies. Another member of the public,
who is not a party to this proceeding, similarly complained about the absence
of specific cites to the technical reports, asked for copies of them, and was
accommodated. WUF also complained about inadequate references to technical
reports, but did not request to review them. A supplemental appendix made part
of the final EIR included several of the reports including the "Natural Resource
Constraints Analysis," the "Biological Resources Report," the
"Signal Warrant Analysis," and the "Wave Runup
Analysis."
EMCA complains the DEIR's
failure to specifically reference each of the reports by title, author, and
date, instead referring to them only by general subject matter, deprived the
public of critical information about the existence of those reports and
precluded the public from being able to review the technical information. In
short, it accuses the Department of engaging in "hide-the-ball"
tactics. EMCA invokes Protect The Historic Amador Waterways v. Amador Water
Agency (2004) 116 Cal.App.4th 1099, 1105 [11 Cal. Rptr.
3d 104], in which the court noted that, " 'When the informational
requirements of CEQA are not complied with, an agency has failed to proceed in
"a manner required by law" and has therefore abused its discretion.'
[Citation.]" But that case involved an EIR that failed to analyze a particular
significant environmental effect of the proposed project. It did not involve
the matter of interpretation of particular Guidelines.
Although certainly "we must ensure
strict compliance with the procedures and mandates of [CEQA]" (Save Our
Peninsula Committee v. Monterey County Bd. Of Supervisors (2001) 87 Cal.App.4th 99, 118 [104
Cal. Rptr. 2d 326]), but we must also be mindful of
the purposes of the statute in deciding how strict to be in interpreting the
Guidelines. The Guidelines direct the lead agency to "cite all documents
used in its preparation ... ." (Guidelines, § 15148.) But they do not tell
the lead agency how specific it must be in those citations other than to suggest
using page and section numbers when possible. Here, the Department disclosed
the existence of all of the technical reports, by subject matter; it simply
failed to give the specific titles to each report. " 'CEQA requires an EIR to reflect a good faith effort at
full disclosure; it does not mandate perfection ... .' " (Defend
The Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1265, italics
added.) Certainly, the Department could have included more detail about the
titles of the technical reports. But we simply cannot say the DEIR failed to
advise the public about the existence of this technical information or that the
lack of specific titles constitutes a failure to comply with CEQA's procedural requirements. In fact, EMCA and other
members of the public were obviously alerted to the existence of the technical
reports and obtained them from the Department. In its separate brief, WUF
asserts it has never seen any of the technical reports. But nothing in the
record suggests WUF was precluded from doing what other members of the public
did--i.e., ask for them. The existence of the technical reports was revealed in
the DEIR. n5
Finally, EMCA argues the failure to
specifically cite the technical reports in the DEIR "undermines the
trustworthiness of the [DEIR]." We fail to see how. We have reviewed the
DEIR and the specific technical reports. We agree with the trial court's
assessment that the information in the reports was either repeated in the DEIR
or summarized in the DEIR.
V
Other Reports
We separately address EMCA's
complaints about two additional reports that were part of the administrative
record.
1. The Traffic Study
The DEIR concluded the project would have a
less than significant impact on traffic. Using the "ITE, Trip Generation
6th Edition," it projected the project would generate an estimated average
daily trips (ADTS) of 1,476, as compared to the current mobile home park with ADTs of 1,380. As to pedestrian access, the DEIR noted a
potentially significant impact (public safety) due to the estimated "1000
people per day [who] would cross the [PCH] to access the beach during peak
use periods." Accordingly, the DEIR proposed the signalized pedestrian
crossing at Moro Creek Tunnel to mitigate the impact on public safety.
On August 12, 2002, a "Trip Generation and Vehicle Occupancy Analysis" was
completed by RBF consulting. The report is 18 pages long accompanied by
supporting data including 100 pages of actual traffic counts taken on the first
weekend in August 2002. The conclusion of the report is that based on ITE trip
generation data the forecasted ADTs would be 1,476 on
weekdays, 1,686 on Saturdays, and 1,587 on Sundays. However, the traffic count
data showed lower volumes--of 1,284 on Saturdays, and 1,375 on Sundays, and
because usage would be lower on weekdays, the traffic volume would be lower on
weekdays. The report also forecast daily "pedestrian crossings" (as
opposed to the number of people each day) of PCH from the parking area of 1,693 on
Saturdays and 1,820 on Sundays.
The final EIR was completed the next day, August 13, 2002. It again concluded the project would have a less than significant
impact on traffic, revising its numbers to reflect the August 12 traffic study.
As to pedestrian access, the final EIR stated there would be an estimate
1000 people per day crossing PCH "each way."
We are, quite frankly, perplexed by EMCA's arguments regarding the traffic study. First, EMCA
complains the data in the traffic study differed significantly from the final EIR. Specifically, it complains the
traffic study projected daily "pedestrian crossings" of PCH of 1,693 on Saturdays and 1,820 on
Sundays. But the final EIR stated an estimated 1000 people per
day would cross PCH "each way." Thus, EMCA argues the EIR understated pedestrian crossing by
almost one-half. But EMCA does not take its argument to the logical conclusion,
i.e., that recirculation of the EIR was required due to significant new
information. (See § 21092.2; Guidelines, § 15088.5.) Furthermore, the traffic
study did not contain significant new information. One thousand people crossing
each way equals 2000 crossings. The EIR did nothing more than to round up
the numbers.
Next EMCA complains the traffic study is
four times longer than the EIR itself and contains an analysis
"100 times more expansive" than the DEIR's
analysis of traffic. It suggests that given the timing of the traffic report
being completed the day before the EIR, and the enormous length of the
document, it is not physically possible (or plausible) the decision maker
(i.e., Deputy Director Berry) actually considered the information contained in
the traffic study when certifying the final EIR.
We have fully reviewed the traffic study.
True, the document is 295 pages long. But only 18 of those pages contain any
sort of analysis and most of that is in table form. The remaining 275-plus
pages are essentially data sheets. The heart of the document is its one-page
conclusion about the number of trips forecast. The final EIR was specifically amended to reflect
the relatively minor changes in the traffic information. We presume the
Department considered the information.
2. Hydrology Study
EMCA also complains about a hydrogeologic study prepared by the Department and
submitted to the San Diego Regional Water Quality Control Board (RWQCB) in
September 2002, one month after the EIR was certified and the project
approved. It complains the existence of this report further demonstrates the
Department hid technical reports from public view and "proves that its
decision was a foregone conclusion." The contention is meritless.
The DEIR discussed the project's impact on
Moro Creek and watershed resources. In the section on significant impacts, the
DEIR explained there could be some temporary adverse impacts associated with
demolition of the mobile home park's structures, and with construction of the
new project facilities in the form of runoff and soil erosion. But overall, the
DEIR anticipated the project would benefit Moro Creek and its watershed. The
DEIR explained the mobile home park's onsite sewer system (septic tanks and
leach fields) was failing. Currently effluent collected from the mobile homes
is pumped into leach fields alongside Moro Creek up canyon from the mobile home
park. Water quality tests performed by the County of Orange Health Department
and the Department indicated unacceptable bacteria levels in the creek itself.
The current septic system would be removed and replaced with a connection to
the municipal sewers.
In its comments on the DEIR, EMCA
complained about the Department's assertion the current sewer system was
failing as being unsupported by data. It noted that in April 2001, the San
Diego RWQCB ordered the Department to complete a report on waste water
discharge, which had not yet been completed. In its response to EMCA's comment, the Department noted weekly testing by the
County Health Department showed high levels of bacteria, the Department was
conducting additional tests to determine the source of the bacteria (natural or
from sewage), and the test results would be available for the San Diego RWQCB
in late 2002.
The final EIR was revised to reflect this
information. It stated because of the year round presence of water in Moro
Creek, which naturally would only have water intermittently, and the high bacteria
levels, it was suspected the onsite sewage treatment system was failing.
Testing was ongoing to determine the source of the bacteria.
In September 2002, the Department completed
a hydrogeologic report for the San Diego RWQCB. As
background, the report explained that in 2000, the Department applied for
permission from the San Diego RWQCB to install a disinfection system for
wastewater at the mobile home park. This was the first San Diego RWQCB staff
knew of the existing sewage treatment facilities at the site. Ultimately, in
April 2001, San Diego RWQCB requested the Department to complete a statutorily
mandated waste discharge report. (See Water Code, § 13260.) One of the required
elements of that report was a comprehensive hydrogeologic
investigation. The bottom line of the hydrogeologic
investigation was that water sources within Moro Creek downstream of the leach
fields were predominantly from wastewater disposal (i.e., percolation from the
leach fields), but bacteria from the wastewater was effectively filtered out
(i.e., bacteria was from natural not human sources).
Water Code section 13260 requires any
person who discharges wastewater, other than into a community sewage system,
which could affect water quality within the state to comply with certain
reporting requirements. The report about which EMCA complains was prepared for
the San Diego RWQCB in compliance with the RWQCB's
directives. EMCA is not suggesting the Department's issuance of report of a
waste discharge to the RWQCB, or compliance with its statutory duties under the
Water Code required some separate compliance with CEQA. In other words, it does
not suggest issuance of the report was itself a project under CEQA, or that the
report contained significant new information that required the Department to
prepare a supplemental or subsequent EIR for the project. (See Guidelines,
§§ 15162, 15163.) Rather, it argues the completion of these statutorily
required reports after certification of the EIR somehow casts doubt on the EIR. We do not see how. The EIR disclosed the concerns about the
source of year round water in Moro Creek and the presence of unacceptable
levels of bacteria. It specifically noted testing was ongoing and EMCA, by its
comments, indicated it too was aware of the testing. But the testing (and the hydrogeologic study) was not completed as part of the
decision-making process vis- [aacute]
-vis the mobile home park conversion project, rather
it was completed as part of its current statutory obligations as a waste
discharger. Indeed as part of the project the Department will get out of the
"waste discharge business" by connecting the park to the municipal
sewer system. Thus completion of the hydrogeologic
report had no bearing one way or the other on the Department's decision to approve
the project.
VI
Motion to Augment Administrative Record
EMCA contends the court erred by denying
its motion to augment the administrative record. We disagree.
EMCA elected to prepare the administrative
record itself. (See § 21167.6.) Prior to the hearing on its mandamus petition,
EMCA sought to augment the administrative record with three documents. The
first document was a one-page printout from "CEQANET," the California
State Clearinghouse's searchable online EIR database listing three EIRs pertaining to Crystal Cove State Park submitted to the State Clearinghouse by the Department. One was the EIR at issue in this proceeding (the El
Morro Conversion). One, dated April 2001, pertained
to the Crystal Cove Historical District and described the project as involving
health and safety investigations, testing, site repair, stabilization, and
clean-up. The third EIR, dated October 17, 2002 (two months
after this project was approved), also pertained to the Crystal Cove Historical
District, and described the project as including a general plan amendment
establishing a range of uses for the historical district and surrounding area.
The second "document" proffered by EMCA was a one-page Department
newsletter and a three-page Department news release both dated January 2003,
stating the project had been modified to remove the pedestrian crossing. The
third document was a photocopy of a page from the County of Orange Transportation Implementation Manual dated March 15, 1994. The motion to
augment was denied.
EMCA characterizes this as an issue of
"augmenting" the administrative record with documents that should
have been part of the record. It accuses the Department and the trial court of
having improperly "truncated" the administrative record. Accordingly,
it contends the trial court's ruling runs afoul of this court's opinion in County
of Orange v. Superior Court (Vedanta Society of Southern California) (2003)
113 Cal.App.4th 1 [6 Cal. Rptr. 3d 286]. That case is
completely inapplicable. It involved an administrative mandamus
proceeding (see § 21168, Code Civ. Proc., § 1094.5)
to review an action of the County acting in its adjudicatory (i.e.,
quasi-judicial) capacity. (County of Orange v. Superior Court (Vedanta
Society of Southern California), supra, 113 Cal.App.4th at p. 11, fn. 2.)
The case considered a project opponent's attempt to prohibit the County from
showing its CEQA decision was supported by substantial evidence by removing
from the administrative record items that by statute were properly included in
the administrative record. (Id. at p. 7.)
By contrast, this case involves an attempt
to place before the trial court, documents that were extrinsic to the
administrative record (i.e., that either were not before the Department or
which involve post-decision changes). Furthermore, it involves review of the
Department's quasi-legislative approval of a public improvement on public land.
(See Oceanside Marina Towers Assn. v. Oceanside Community Development Com.
(1986) 187 Cal. App. 3d 735, 745 [231 Cal. Rptr. 910]
["decisions of public entities as to the location of public improvements
are legislative in character"].) Accordingly, EMCA's
effort to place extra-record documents before the trial court is strictly
controlled by Western States Petroleum Assn. v. Superior Court (1995) 9
Cal.4th 559 [38 Cal. Rptr. 2d 139, 888 P.2d 1268] (Western
States Petroleum).
Western States Petroleum confirmed that judicial review of quasi-legislative
actions sounds in traditional mandamus (Code Civ.
Proc., § 1085) and thus, in the case of a CEQA challenge to such an action,
review is under section 21168.5--i.e., the inquiry extends only to whether
there was a "prejudicial abuse of discretion" because either the
agency has not proceeded in a manner required by law or its decision is not
supported by substantial evidence. (Western States Petroleum, supra, 9
Cal.4th at pp. 567-568.) Western States Petroleum also confirmed
"extra-record evidence is generally not admissible in traditional mandamus
actions challenging quasi-legislative administrative decisions on the ground
that the agency 'has not proceeded in a manner required by law' within the
meaning of ... section 21168.5." (Western States Petroleum, supra,
9 Cal.4th at p. 576.) There is an exception to the rule where the action
challenges "ministerial or informal administrative actions if the facts
are in dispute." (Ibid.) Obviously, the exception does not apply,
thus the rule does. The trial court properly refused to consider items that
were not part of the record before the Department.
We have further comments regarding the
proffered extrinsic evidence. First, as to the photocopy of the page from the
1994 County of Orange Transportation Implementation Manual, EMCA has not made any argument on appeal as to why the document was in
any way relevant. We will not speculate as to its possible relevance. We note
that had EMCA believed it was pertinent to its objections to the Department's
decision, it was incumbent on EMCA to place it in the administrative record
before the Department approved the project.
Next, as to the one page State
Clearinghouse list of EIRs, EMCA argued the document
was relevant to prove the Department was improperly "piecemealing"
the project. It is well established CEQA prohibits piecemeal environmental
review by " 'chopping a large project into many little ones--each with a
minimal potential impact on the environment--which cumulatively may have
disastrous consequences. [Citations.]' " (Citizens Assn. for Sensible
Development of Bishop Area v. County of Inyo (1985) 172 Cal. App. 3d 151,
165 [217 Cal. Rptr. 893].) EMCA does not pursue the
"piecemealing" argument on appeal. What we
can glean from the record is that EMCA contended the Department was piecemealing the renovation and restoration of the Crystal
Cove Historical District and the El Morro Mobile Home
Park conversion so as to minimize the significant cumulative impact of both
projects on housing. n6 But the only proffered "proof" was the
one-page computer printout indicating two EIRs were
prepared for the Crystal Cove Historical District. We are at a loss to see how
the mere fact there are two other EIRs relating to
another project within the park supports EMCA's
point.
Finally, as to the proffered newsletter and
news release, we find no error in the court's refusal to admit these documents.
The fact the documents were offered to prove, that the proposed signalized
pedestrian crossing has been deleted from the project, was readily admitted by
the Department below. EMCA argues on appeal that deletion of the signalized
crossing is a significant change to the project, which this EIR is inadequate to address. n7
But the post-decision change is completely
irrelevant in this proceeding. It is axiomatic that once an agency has
given its requisite approval to a project, CEQA's
role in that project is completed. Judicial review is limited to the
CEQA determination for the project approved. If significant new information
thereafter develops, a supplemental or subsequent EIR might be required in connection
with the agency's next discretionary approval, if any. (§ 21166;
Guidelines, § 15162.) But information arising after an approval does not
require reopening of that approval. (Guidelines, § 15162(c); 1 Kosta & Zischke, Practice
Under the Cal. Environmental Quality Act (Cont.Ed.Bar
2003) § 19.28, pp. 734-735.) Furthermore, "if an agency authorizes major
modifications to a project without [first] determining whether further CEQA
review is required, its decision to approve the changes to the project may be
set aside." (1 Kosta & Zischke,
supra, § 19.29, p. 736; see also Concerned Citizens of Costa Mesa,
Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 [231 Cal. Rptr. 748, 727 P.2d 1029].) But whether the changes
necessitate further CEQA review is an issue that must be addressed by the
Department in the first instance--not by the trial court or this court.
(Guidelines, § 15004(a); see also Vollstedt
v. City of Stockton (1990) 220 Cal. App. 3d 265, 279 [269 Cal. Rptr. 404].) "If post-approval environmental review were
allowed, EIR's would likely
become nothing more than post hoc rationalizations to support action
already taken." (Laurel Heights Improvement Assn. v. Regents of
University of California (1998) 47 Cal.3d 376, 394 [253 Cal. Rptr. 426, 764 P.2d 278].)
In short, we cannot review the adequacy of this
EIR and the project described by this EIR in light of
post-approval changes to the project. If, as EMCA suggests, the removal of the
signalized pedestrian crossing constituted a substantial change to the project
requiring a major revision to the EIR (see § 21166; Guidelines § 15162),
then it is incumbent upon them to challenge the revised project. They have not.
And we agree with the Department the time for these petitioners to make such a
claim has long since passed. The Department announced the deletion of the
signal in January 2003 and we know from this record that the petitioners were
aware of the change at the very latest on June 24, 2003, when they filed their opening brief and request to augment the record.
Accordingly, the 180-day time period in which to challenge the allegedly
revised project has expired. (§ 21167, subd. (a).)
Nor can we agree that the petitioners have
adequately challenged the revision in this proceeding. Petitioners never
sought to amend their petition to challenge the revised project or to argue a
supplemental EIR was required. Their only effort at raising it was to introduce the
press release stating the signalized pedestrian crossing had been deleted from
the project.
Finally, even had the court admitted the
document, it was hardly adequate to support a showing that a supplemental EIR was required. The deletion of the
crossing simply was not a substantial change in the project requiring a major
revision of the EIR. (§ 21166, subd. (a).) "[W]hen
circumstances change in a relatively minor fashion or do not cause any
significant impacts other than those already contemplated by the EIR, CEQA does not require preparation
of a subsequent EIR." (A Local & Regional Monitor v. City of Los Angeles
(1993) 12 Cal.App.4th 1773, 1803 [16 Cal. Rptr. 2d
358].) The DEIR and the final EIR discussed the pedestrian
access/safety issue. The Moro Creek Tunnel was one way to access the beach from
the inland parking area; the proposed signalized crossing was another. It was
always clear that any such signal was subject to CalTrans
approval. We simply cannot say the change was unforeseen by the EIR or required a different analysis.
The judgment is affirmed.
Rylaarsdam, Acting P. J., and Fybel,
J., concurred.
This file last modified on: Wednesday, May 25, 2005.