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ENDANGERED HABITATS LEAGUE, INC., et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents; RUTTER DEVELOPMENT
COMPANY, INC., Real Party in Interest. COURT OF APPEAL, FOURTH APPELLATE
DISTRICT, DIVISION THREE, G034416 Appeal from a judgment of the COUNSEL Johnson
& Sedlack and Raymond W. Johnson; Snell & Wilmer and Richard A. Derevan
for Plaintiffs and Appellants. Benjamin
P. DeMayo, Law
Offices of William D. Ross, William D. Ross, Diane C. DeFelice, and Kypros G.
Hostetter for Real Party in Interest. OPINION BEDSWORTH, J. This
is an appeal from a judgment that denied petitions for a peremptory writ of
mandate to compel the Endangered
Habitats League argues the project is inconsistent with the county’s general
plan, and an environmental impact report (EIR) fails to provide sufficient
information to make an informed decision on the project. We agree and reverse. * * * The
project at issue consists of two adjacent but non-contiguous sites in the On Three
separate petitions were filed seeking writs of both ordinary and administrative
mandamus. (Code Civ. Proc.,
§§ 1085, 1094.5.) Since they raised
similar questions of law and fact, the matters were consolidated.[ii] The specifics of the land use plans involved
and the EIR will be set out in the course of our discussion, along with the
details of Endangered Habitats’ arguments.
The trial judge denied each of the petitions and entered judgment on all
for the county and Rutter. I Endangered
Habitats argues the project is inconsistent with the county’s general plan
because it will cause an impermissible increase in traffic on We
review decisions regarding consistency with a general plan under the arbitrary
and capricious standard. These are
quasi-legislative acts reviewed by ordinary mandamus, and the inquiry is
whether the decision is arbitrary, capricious, entirely lacking in evidentiary
support, unlawful, or procedurally unfair.
(Corona-Norco Unified School Dist.
v. City of Corona (1993) 17 Cal.App.4th 985, 992 [zone change]; Mitchell v. County of Orange (1985) 165
Cal.App.3d 1185, 1191-1192 [specific plan].)
Under this standard, we defer to an agency’s fact finding of consistency
unless no reasonable person could have reached the same conclusion on the
evidence before it. (Id. at p. 1338.)[iii] All
counties and cities must adopt a general plan for the physical development of
their land. (Gov. Code,
§ 65300.) The general plan
functions as a “‘constitution for all future developments,’” and land use
decisions must be consistent with the general plan and its elements. (Citizens
of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.) A “project is consistent with the general
plan if, considering all its aspects, it will further the objectives and
policies of the general plan and not obstruct their attainment. [Citation.]”
(Corona-Norco Unified School Dist.
v. City of Corona, supra, 17 Cal.App.4th at p. 994.) Perfect conformity is not required, but a
project must be compatible with the objectives and policies of the general
plan. (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors,
supra, 62 Cal.App.4th at p. 1336.) A
project is inconsistent if it conflicts with a general plan policy that is
fundamental, mandatory, and clear. (Id. at pp. 1341-1342.) The
growth management element of the county’s general plan establishes policies for
traffic improvement and public facilities needed for orderly growth and
development. Its declared purpose is, in
part, “to mandate that growth and development be based upon the County’s
ability to provide an adequate circulation system . . . .” A “traffic level of service policy” addresses
the need for highway improvements when development increases traffic. County policy is that improvements must be
made within a stated time after issuance of various permits so as to achieve
level of service (LOS) D at intersections, and C on At
issue is the approval of the area plans for the two sites that compose the
project. The EIR reveals that under the
HCM method, the project would cause the LOS on The
Board of Supervisors acknowledged the problem under the HCM method and likewise
solved it by relying on the V/C analysis.
In findings of fact in support of the EIR, the Board determined project
impacts on transportation and circulation would be reduced to insignificance
after mitigation. But the explanation
for this finding reveals the Board’s action was based upon uncritical adoption
of the EIR’s use of the V/C method:
“Both short-range and long-range project and cumulative impacts to It
is clear the project is inconsistent with the general plan’s traffic service
level policy. The general plan requires
LOS C as determined under the HCM method, and the project does not comply. That it does so under the V/C method is of no
import, since the general plan is unambiguous in demanding the evaluation be
made by the HCM method. The approval of
the area plans, AP 99-03 (Saddle Creek) and AP 99-07 (Saddle Crest), must be
set aside. Rutter’s
several arguments for consistency are all based on misreadings – and
misrepresentations – of the record. It
contends the EIR establishes the Rutter
argues the HCM method was used because the EIR considers it along with the V/C
method. This is semantic sleight of
hand. Both the EIR and the Board of
Supervisors relied on the V/C method to find traffic levels acceptable, after
acknowledging they were not under the HCM method. You do not “use” something by disregarding
it. Equally
disingenuous is an argument that the V/C method was not used because it is not
mentioned in sections of the EIR setting out thresholds of significance and
mitigation measures. But neither has
anything to do with measuring levels of service before or after the
project. Any suggestion that the V/C
method was not used in the EIR is frivolous.
A
bolder argument seems to say the Board of Supervisors did not rely on the V/C
method, and all that happened was “clumsy wording of the Board’s findings that
mention ‘the V/C method.’” That flat out
misrepresents the record. Here is what
the Board said explaining why there was no significant impact on Finally,
Rutter asserts that required mitigation measures will bring The
mitigation measures in question are contributions to two road improvement
programs for The
problem we have is that the EIR does not state mitigated impacts will be less
than significant under the required HCM method.
Since the EIR uses the V/C method to analyze traffic impacts initially,
we cannot reasonably assume the statement about mitigated impacts now referrs
to the HCM method. Moreover,
the record citations offered by Rutter do not back up the claim that
contributions to the fee programs will result in LOS C on II Endangered
Habitats contends the specific plan amendment is inconsistent with the general
plan in two other ways. First, it
changes the rules to allow balancing of specific plan requirements, rather than
compliance with all of them. Second, it
exempts the project from otherwise mandatory specific plan requirements. We agree these are also fatal
inconsistencies. The
growth management element of the general plan is again at issue. A policy entitled “transition areas for rural
communities” provides, in relevant part:
“New development within the . . . Foothill-Trabuco Specific Plan
planning area[] shall be rural in character and shall comply with the policies of [that] plan in order to maintain
a buffer between urban development and the The
specific plan does not identify any “policies.”[iv] It does, however, distinguish between
mandatory and permissive provisions. A
“consistency checklist” in the appendix explains that “‘shall’ indicates a
mandatory [r]egulation to which there are no exceptions, while ‘should’ indicates
a non-mandatory [g]uideline.” The
checklist states projects must be consistent with all applicable regulations,
but the planning commission may approve deviations from the guidelines if it
finds “the project is in overall
compliance with the Guidelines and consistent with the Goals and Objectives of
the Specific Plan.” The
specific plan amendment begins with the balancing provision: “In analyzing and considering applications
for development and use within the Specific Plan area, the Director of Planning
and Development Services, Planning Commission and Board of Supervisors shall
not give precedence to one provision of the Specific Plan over another but
shall balance consideration of Specific Plan development goals and policies so
as to further overall Specific Plan goals and policies while not hindering
their attainment.” The
amendment goes on to enact new regulations on tree preservation, grading, and
open space that apply only to this project.
For example, in the case of oak woodlands, the amendment provides: “For the Saddle Creek and Saddle Crest Area
Plan areas . . . the following shall apply.”
The new regulations follow. Then
this: “Consistency with [the new
regulations] shall exempt the Saddle Creek and Saddle Crest Area Plan areas from
[the existing oak woodland regulations] herein and shall be regarded as
satisfactorily preserving and protecting the oak woodlands on the subject
properties.” The original tree preservation
regulations required that oaks over 5 inches in trunk diameter, and sycamores
over 35 inches, be transplanted unless the tree was “in poor health and would
not survive transplantation.” In that
event, the tree was to be replaced according to a table that specified the size
and number of replacement trees required. Under the amendment, oaks and sycamores may be
replaced if they are “in poor health or
would not likely survive transportation, or
[were] determined to be infeasible for transportation as certified by an
arborist . . . .” (Emphasis added.)[v] Grading
standards in the specific plan set out the maximum volume of earth that may be
moved and maximum permitted changes to slope and elevation of sites. They state each project “shall preserve a
minimum of sixty-six (66) percent of the site in permanent, natural open space
. . . .” Alternative grading standards
permit approval of increased grading, slope, and elevation changes, but there
is a trade-off: “The Alternative Grading
Standards shall result in seventy (70) percent or more of the project site
being preserved in natural open space.” (Emphasis added.)[vi] The
amendment relaxes the open space prerequisite for use of the alternative
grading standards and, under the relaxed standard, it approves alternative
grading. The new standard is: “The Saddle Creek and Saddle Crest Grading
standard shall result in seventy (70) percent or more of each [site] . . .
being preserved in permanent open space.” (Emphasis added.) According to the EIR, uses allowed in
“permanent open space” include “natural undisturbed open space,” “river rock
walls,” unpaved “emergency utility easements,” “remedial grading,”[vii]
“fuel modification,”[viii]
and tree transplanting. A Endangered
Habitats argues the amendment allows specific plan regulations to be balanced,
and this conflicts with the general plan policy that new development must
comply with all specific plan policies.
It is right. Preliminarily,
we note the parties assume the specific plan policies are reflected in its
mandatory provisions, the regulations.
Without discussing the absence of any stated policies in the specific
plan, they treat the general plan’s direction regarding specific plan policies
as applying to the latter’s regulations.
For purposes of this case, and this case only, we will assume that is
correct. The
county’s consistency finding recites the specific plan amendment (referred to
as a zone change) is consistent with the general plan without explanation.[ix] The evidence before the Board when
it made the finding was a staff report on the amendment and the testimony of
Brian Speegle, assistant director of planning, given at the public hearing held
to consider the approvals and resolutions for the project. The
staff report says the amendment allows for balancing of specific plan goals and
objectives, since they cannot all be satisfied in every project. “In staff’s view, this has been the process
that is typically used at both the general and the specific levels of planning.
. . . [T]he language proposed for
addition . . . makes explicit what has been the practice. It would strengthen the F/TSP, although it
does not represent a major change in approach to analyzing projects.” At
the hearing, Speegle went further.
Referring to the balancing provision, he said “there’s a general
amendment . . . that would be applied throughout the specific plan area, and it
explicitly permits a balancing of the competing policies or requirements of the specific plan so that inconsistency with one
policy does not automatically disqualify a project from consideration.” (Emphasis added.) A little later, he put it this way: “[T]he specific plan already explicitly
provides for some balancing of development and design guidelines, for example .
. . the planning commission [can] find a project is in overall compliance with
the guidelines without the project being consistent with each and every
guideline. [¶] The specific plan amendment would extend this
balancing to all specific plan policies and
regulations.” (Emphasis added.) We
cannot uphold the consistency finding, since it is not one a reasonable person
could reach on this evidence. The staff
report said the amendment applies only to balancing goals and policies, already
the practice, yet it acknowledged the amendment would change the approval practice (the amendment does not
represent “a major change” in approach).
And, of course, if the amendment merely confirmed the extant practice,
why was it needed? Speegle was much more
direct when he said the amendment allows specific plan “requirements” and
“regulations” to be balanced. As
assistant planning director, presumably he was as well versed as anyone on the
amendment, and no one got up to correct or challenge him. It may be that no balancing of regulations
was intended, and the amendment might be clarified on that point. But as it stands, the balancing provision is
inconsistent with the general plan. Rutter
contends Speegle’s interpretation of the balancing amendment was an unfortunate
and inadvertent misstatement, and every other discussion of the issue in the
record states only goals and policies are to be balanced. We are not persuaded. Speegle never said he spoke carelessly or
corrected his statements. As for the
record, the developer points to the staff report, several places where the
amendment is quoted or paraphrased, and an after-the-fact B Endangered
Habitats contends the amendment’s new regulations for this project are also
inconsistent with the general plan, because they relax specific plan
regulations otherwise applicable to the project. Right again.
The
amendment gives the developer an unacceptable freebie. In effect, it exempts this project from
specific plan regulations on tree preservation, grading, and open space, and
substitutes new regulations that are less stringent. This, of course, directly contradicts the
general plan policy that all new development must comply with all specific plan
policies. Consistency requires more than
incantation, and a county cannot articulate a policy in its general plan and
then approve a conflicting project. (Napa Citizens for Honest Government v. Napa
County Bd. of Supervisors, supra, 91 Cal.App.4th at pp. 379-380.) Since no reasonable person could have made
the consistency finding on the record before us, it must be set aside as
arbitrary and capricious. (Families Unafraid to Uphold Rural Etc.
County v. Board of Supervisors, supra, 62 Cal.App.4th at p. 1338.) Rutter
contends the consistency finding must be upheld because it is entitled to great
weight and deference. But the developer
makes no attempt to grapple with the evidence or provides us with a citation to
something – anything – that reasonably supports the finding. Since no evidence in support of the finding
has been identified, we cannot defer to it.
Rutter
argues there is no inconsistency because the specific plan amendment need not
comply with all specific plan policies, or all specific plan guidelines. The first point contends the general plan
never says “all” specific plan policies must be met, so a conflict with some is
acceptable. We cannot agree. The general plan states specific plan
“policies” must be met, and that means
all of them. The second argument is that
the specific plan consistency checklist says a project need not be consistent
with each and every guideline. That is true.
The guidelines are permissive.
But the checklist is unequivocal that projects must be consistent with
all applicable regulations, which are
mandatory. In the absence of that kind
of consistency, these textual arguments are to no avail. The
developer relies on Equally
misplaced is citation of Finally,
Rutter argues there is no inconsistency because the amended regulations really
do not make any important change to the specific plan. It insists the amended tree regulations
promote an environmentally superior project, grading satisfies the alternative
grading standards, and the amended open space requirement is essentially the
same as the original. We cannot
agree. As
to the amended tree regulations, whether this project is environmentally
superior – in the developer’s view – has no bearing on the issue at hand, which
is consistency with the general plan. If
the project does not comply with the general plan, neither we nor the developer
can justify its approval on the basis that it appeals to us. The
project qualifies for alternative grading only because the threshold for it was
changed. Under the changed standard,
alternative grading standards could be invoked upon a showing of sufficient
“permanent open space,” rather than “natural open space.” Rutter argues the two are the same, but they
are not. There is a vast difference
between “permanent open space” approved in the amended regulation and “natural
open space” required by the original. It
is true, as Rutter points out, that “natural” is not defined in the specific
plan. But it has a recognized meaning –
“produced or existing in nature; not artificial or manufactured” (Webster’s New
World Dict. (4th college ed. 2002) p. 959), or “occurring in conformity with
the ordinary course of nature.” (Webster’s 3d New Internat. Dict. (1981) p.
1506.) Many of the uses permitted in
permanent open space are artificial and do not occur in the ordinary course of
nature, such as rock walls, easements, remedial grading, fuel modification, and
tree planting. It is obvious that
alternative grading would not be permitted under the specific plan, because the
“permanent” open space allowed by the amendment does not qualify as “natural”
open space required under the specific plan.
Since the amendment materially loosened the three regulations at issue,
it is inconsistent with the general plan.[x] C Endangered
Habitats alternatively argues the specific plan amendment is invalid because it
applies only to this project. This
question turns on the interpretation of a statute that provides “the
legislative body may amend all or part of an adopted general plan.” (Gov. Code, § 65358, subd. (a).) A specific plan may be amended in the same
manner as a general plan. (Gov. Code,
§ 65453.) Endangered
Habitats contends an element of a plan may be changed for the entire
geographical area, but a change in generally applicable requirements that
affects only part of the area is impermissible.
Conceding it cannot find any authority on point, Endangered Habitats
asserts a specific plan would be meaningless if it could be changed for each
project that comes along. Rutter
responds the argument was not raised below, it fails for lack of authority and,
in any event, the plain meaning of “in part” includes a site-specific
amendment. We
decline to consider the argument because the issue was not raised below at the
administrative level. (See A Local & Regional Monitor v. City of
Los Angeles (1993) 16 Cal.App.4th 630, 648 [argument that EIR inconsistent
with general plan waived because not raised below].) Endangered Habitats’ contention it was
brought up is not supported by the record.
While numerous speakers at hearings before the Board of Supervisors and
the Planning Commission asked them not to relax the specific plan, and some
explained the amendment would render the specific plan internally inconsistent,
no one broached the present statutory argument.
On this record, the issue was waived. III Endangered
Habitats next argues the EIR is insufficient because it uses an incorrect legal
standard, improperly defers mitigation, fails to consider a significant impact,
and fails to consider the specific plan amendment balancing provision. We conclude the legal standard and deferral
of mitigation are improper, so the EIR is inadequate and must be set
aside. We
review agency actions under CEQA to determine if there was a prejudicial abuse
of discretion, which exists if the agency has not proceeded in a manner
required by law or if its decision is not supported by substantial
evidence. It is not our role to decide
the correctness of an EIR’s environmental conclusions, but only its sufficiency
as an informational document. (Citizens of Goleta Valley v. Board of
Supervisors, supra, 52 Cal.3d at p. 564.)
“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.] [¶]
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.]” (Dry
Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20,
26.) A The
legal standard argument is that the EIR uses the wrong test for the threshold
of significance of impacts on biological resources. It seems to.
An
EIR must identify and discuss “all significant effects on the environment” of a
proposed project (Pub. Resources Code, § 21100, subd. (b)(1); CEQA
Guidelines (Guidelines) § 15126 (a).[xi]) A significant environmental effect is “a
substantial, or potentially substantial, adverse change in the
environment.” (Pub. Resources Code,
§ 21068.) A project has a
significant effect on the environment if, among other things, it substantially
reduces the habitat of a fish or wildlife species, causes a fish or wildlife
population to drop below self-sustaining levels, threatens to eliminate a plant
or animal community, or reduces the number or restricts the range of an
endangered, rare, or threatened species.
(Guidelines, § 15065 (a).)[xii] The
instant EIR sets out “thresholds of significance” used to determine whether the
project caused significant environmental impacts on biological resources. Its test is that a significant impact would
be identified there is a “substantial effect” on enumerated biological
resources.[xiii]
This is qualified by the following
definition: “Substantial effect means significant loss or harm of a magnitude
which . . . 1) would cause species or a native plant [or] animal community to
drop below self-perpetuating levels on a statewide or regional basis; or, 2)
would cause a species to become threatened or endangered.” The
standard used in the EIR is therefore impermissibly lenient. The definition of substantial effect
effectively limits significant environmental impact to reducing plant or animal
communities below statewide or regional self-perpetuating levels, or making a
species threatened or endangered. The
proper standard, set out above, is considerably broader. The use of an erroneous legal standard is a
failure to proceed in the manner required by law that requires reversal. (No
Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 88.) Rutter
argues that focusing on the definition of substantial effect is misleading,
because the listed criteria are broader and state a proper legal standard. It is wrong.
The EIR states an impact would be significant only if it results in a “substantial effect” on the listed
criteria. The definition is a limiting
factor, and it amounts to an improper legal standard for identifying
significant environmental impacts. B On
deferred mitigation, Endangered Habitats contends the EIR improperly defers
analysis and mitigation of eleven project impacts. It is correct as to one. “Deferral of the specifics of mitigation is
permissible where the local entity commits itself to mitigation and lists the
alternatives to be considered, analyzed and possibly incorporated in the
mitigation plan. [Citation.] On the other hand, an agency goes too far
when it simply requires a project applicant to obtain a biological report and
then comply with any recommendations that may be made in the report. [Citation.]”
(Defend the Bay v. City of Irvine,
supra, 119 Cal.App.4th at p. 1275.)
If mitigation is feasible but impractical at the time of a general plan
or zoning amendment, it is sufficient to articulate specific performance
criteria and make further approvals contingent on finding a way to meet
them. (Id. at pp. 1275-1276.) The
only problem we see is mitigation of construction interference from noise,
supply depots, and vehicle staging areas.
The EIR provides that before a grading permit is issued, the developer
must submit an acoustical analysis describing the “exterior noise environment”
and “preliminary mitigation measures, if required.” Before a building permit may be issued,
another acoustical report must be submitted to demonstrate structures have been
designed to meet “exterior and interior noise standards” satisfactory to the
manager of the county’s building permit division. That individual must also be satisfied the
developer will place supply stockpiles and vehicle staging areas “as far [away]
as practicable.” This is
inadequate. No criteria or alternatives
to be considered are set out. Rather,
this mitigation measure does no more than require a report be prepared and
followed, or allow approval by a county department without setting any
standards. The
remaining mitigation measures challenged by Endangered Habitats are sufficient,
since they commit to mitigation and set out standards for a plan to
follow. We consider each in turn. Dirt hauling. During construction, there will be traffic
disruption when dirt is hauled away from the sites. The EIR adequately says a construction
vehicle plan must be developed and approved prior to issuing grading
permits. It provides the plan must
assure public safety, restrict the number of daily trips and limit or avoid them
during peak hours, set up clearly marked no passing zones, and use “flaggers”
at site entrances. Drainage. Endangered Habitats contends mitigation of
impacts on the drainage system is deferred because a study to determine the
project’s effect on existing drainage facilities is postponed. But the EIR states that impacts on hydrology
and drainage are less than significant before mitigation, as well as after it,
so we cannot see how waiting for this study makes any difference. Fuel modification plans. Prior to the issuance of a grading permit, a
fuel modification plan must be prepared.
The plan has to comply with Orange County Fire Authority guidelines for
such plans, and it must be approved by the Orange County Fire Authority. This is not improper deferral since, once
again, there is a commitment to mitigate and adequate criteria to determine if
the plan to be submitted is adequate. Gnatcatcher habitat. The EIR states there will be impacts on the
gnatcatcher from construction activities, apparently referring to the removal
of its habitat in coastal sage scrub and scrub-chaparral ecozone. According to Endangered Habitats, mitigation
is deferred because these impacts will be addressed sometime in the
future. But the EIR sets out the
possibilities – on-site or off-site preservation of similar habitat at a ratio
of at least 2:1, or one of several possible habitat loss permits from relevant
agencies. We believe this enumeration of
alternative mitigation measures saves the provision from improper
deferral. Replanting of trees. One mitigation measure for the loss of trees
is replanting new ones off site. The EIR
allows the developer to seek approval for off-site replanting in the future,
and it abandons this mitigation measure if approval cannot be obtained. But the EIR also says its finding of adequate
mitigation does not rely on this mitigation measure, so there is no improper
deferral here. Tree restoration. Another mitigation measure for tree loss
requires a tree restoration, maintenance, and
monitoring plan to be prepared and approved prior to issuing grading
permits. It provides the plan must
“detail” long-term maintenance and monitoring, include requirements for
replanting procedures, and include a contract with a certified arborist for at
least 10 years. The arborist must make
reports throughout the year and must be given decision-making power over tree
care and maintenance. We find these
standards sufficient. Water quality issues. The problem is contaminated runoff from the
project. A regional water quality control plan
limits the pollutants that may be discharged into local waters. It also requires the county to develop its
own plan to reduce pollutants from new development. At the time the EIR was prepared, the
county’s plan was being undated. The
EIR requires the developer to prepare a project water quality plan to reduce
discharge into storm water runoff. It
must incorporate “best management practices,” which are a series of four traps
and filters to remove various pollutants (one for trash, a second for biological
matter, a third for nutrients and microbial contaminants, and a fourth to deal
with fossil contaminants such as oil, grease, and hydrocarbons). Endangered
Habitats argues mitigation of runoff problems is improperly deferred based on
four statements in the EIR. These
concern water quality in general, fuel modification zones, Aliso Creek, and
covenants, conditions, and restrictions (CC&R’s). The first statement appears in a prefatory
section entitled “proposed water quality improvements.” It says “[t]o the extent feasible and in
accordance with County codes policies and practices, project design features
shall be implemented to reduce runoff from the site.” The other statements appear in the EIR’s
ensuing discussion of the project design features and other conditions imposed
to reduce runoff. As to fuel
modification zones and Aliso Creek, the EIR says the best management practices
and irrigation practices “will be implemented” and incorporated in the final
water quality management program to reduce runoff. The EIR also requires the developer to
prepare CC&R’s that impose water quality restrictions on homeowner. Endangered Habitats does not find fault with
the content of the CC&R’s, but with the fact that it does not have to be
prepared until some unspecified time in the future. There
is no improper deferral on these issues.
The general statement regarding proposed water quality improvements just
describes what is to follow, and it is the later enumerated design features
that count. The design features for fuel
modification and Aliso Creek are adequate, since they require use of clearly
identified standards in the form of the “best management practices.” Nor is deferring preparation of CC&R’s a problem where the content is laid out
and concededly adequate. So while final
mitigation measures have not been adopted in these areas, deferral is
permissible because the EIR commits to it and lists standards to be
incorporated in the mitigation plan. The
net result is the EIR improperly defers mitigation in only one area –
construction noise and related impacts. C Endangered
Habitats also faults the EIR for not identifying the traffic increase on As
we have explained, the EIR’s conclusion of no significant impact on D Finally,
Endangered Habitats argues the EIR should have analyzed the impact of the
balancing provision. The argument goes
like this: Because the provision allows
trading-off regulations, it will have an impact on the environment as some
regulations are forfeited in favor of others.
We
need not reach this point. It is moot in
light of our holding that the balancing provision is inconsistent with the
general plan, which will require us to direct issuance of the writ of mandate
to set it aside. In
fine, approval of this project was flawed.
Since the project and the specific plan amendment are both inconsistent
with the general plan, and the EIR is inadequate, the petitions for a writ of
mandate should have been granted. The
judgment appealed from is reversed. The
matter is remanded to the trial court with directions to enter a writ of
mandate to compel the Orange County Board of Supervisors to vacate approval of
area plans AP 99-03 and AP 99-07, Resolution 03-030 certifying the EIR,
Resolution 03-031 approving the specific plan amendment, and Ordinance 03-009
enacting the specific plan amendment. In
addition, the trial court shall consider the additional requests for relief
sought in the petitions in light of our holding that the writs must be
granted. Appellants are entitled to
costs on appeal. CONCURRING RYLAARSDAM, ACTING P.
J. MOORE, J FOOTNOTES [i] The area plans had been previously
approved by the Orange County Planning Commission
in a decision appealed by both Endangered Habitats and Rutter. The Board of Supervisors denied both appeals
and upheld the planning commission. [ii] The
three writ petitions are as follows: (1)
Endangered Habitats League, Inc., Sierra Club, Rural Canyons Conservation Fund,
Sea and Sage Audubon Society, Inc.,
The Endangered Habitats and first Chandos petitions sought a writ of
mandate to set aside the various project approvals and certification of the [iii] We
note some cases review consistency with a general plan under the abuse of
discretion standard applicable to administrative mandamus, inquiring if the
agency has proceeded as required by law and the decision is supported by
substantial evidence. Under the
substantial evidence prong, a common formulation asks if a reasonable person
could have reached the same conclusion on the evidence. (See, e.g., Families Unafraid To Uphold Rural etc. County v. Board of Supervisors
(1998) 62 Cal.App.4th 1332, 1338.) Since
this is the same test used under the arbitrary and capricious standard for fact
findings, for purposes of this case we see no inconsistency. [iv] The
specific plan is divided into five sections – an introduction, specific plan
components, land use regulations, development and design guidelines, and an
appendix. The introduction includes
subsections on goals and objectives, but not policies. [v] The regulations concerning tree replacement
are found in the resources overlay component for oak woodlands, which are
mandatory (section II (C)(3)), and in the landscaping regulations (section [vi] Grading
standards are found in the land use regulations for the Upper Aliso Residential
District, where the project is located.
(Section [vii] Remedial
grading is defined to include removal and re-compacting soil to prepare a
building site and access, slope stabilization and drain installation to
minimize erosion, and excavation for buttresses to reduce landslide potential. [viii] Fuel
modification involves removal of particularly flammable vegetation and
replacement with more fire resistant varieties, and a fuel modification plan
must be incorporated as a component of a required landscaping plan. [ix] The
signed resolution that appears in the record does not include any explanation
for the consistency finding. We note
Rutter’s brief cites more detailed findings attached as appendices to unsigned
copies of two planning commission resolutions dated [x] In light of our holding
that the specific plan amendment is inconsistent with the general plan, we do
not reach Endangered Habitats’ alternative argument that it also amounts to an
impermissible de facto amendment of the general plan. [xi] The
CEQA Guidelines are regulations adopted to implement CEQA, codified at California
Code of Regulations, title 14, chapter 3, §§ 15000-15387. [xii] Our
statement in Defend the Bay v. City of
Irvine (2004) 119 Cal.App.4th 1261, 1273-1274, that a project is deemed to
have a significant impact on the environment as a matter of law if it reduced
the habitat of a wildlife species, or reduces the number or range of an
endangered, rare, or threatened species, was not intended as an exhaustive list
of the components of “significant impact,” but rather a compilation of the
effects which rendered that
particular [xiii] The
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