131 Cal.App.4th 1170, 31
Cal.Rptr.3d 901, 35 Envtl. L. Rep. 20,165, 05 Cal. Daily Op. Serv. 7063, 2005
Daily Journal D.A.R. 9711
LIGHTHOUSE FIELD BEACH RESCUE, Plaintiff and Appellant,
v.
CITY OF SANTA CRUZ, et al., Defendants
and Respondents, CALIFORNIA DEPARTMENT OF PARKS AND RECREATION, Real Party in Interest and Respondent.
COURT OF APPEAL, SIXTH DISTRICT, CALIFORNIA
H027491
August 10, 2005
COUNSEL
Brandt-Hawley Law Group and Susan Brandt-Hawley and Paige J.
Swartley for Appellants.
Atchison, Barisone, Condotti & Kovacevich and John G.
Barisone, Santa Cruz City Attorney Attorneys for Respondents City of Santa Cruz
and City of Santa Cruz City Council.
Bill Lockyer, Attorney General, Thomas Greene, Chief
Assistant Attorney General, Mary E. Hackenbracht, Sr. Assistant Attorney
General, John Davidson, Supervising Deputy Attorney General and Anita E. Ruud,
Deputy Attorney General Attorneys for Respondent California Department of Parks
and Recreation.
OPINION
ELIA, J.
The principal issues in this case
are whether the City of Santa Cruz (City) complied with the California
Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.)[1] in
preparing its initial study of the proposed revisions of the 1984 Lighthouse
Field State Beach General Plan (revised general plan), adopting a negative
declaration instead of preparing an environmental impact report (EIR), and approving the revised general
plan. Appellant Lighthouse Field Beach
Rescue (Beach Rescue), an unincorporated advocacy association, unsuccessfully
petitioned for a writ of mandate on the ground that respondents City and City
of Santa
Cruz City Council (City Council) violated CEQA. The California Department of Parks and
Recreation (Department) is named as a real party in interest.[2]
The petition alleged that the City
"abused its discretion and failed to act in the manner required by
law" by (1) failing to adequately "describe the environmental
setting, including the impacts and extent of the current off-leash dog use at
the Beach" in its initial study, (2) failing to certify an EIR since the "administrative
record contains a fair argument that the amendments to the Plan may result in
significant environmental impacts relating to but not limited to the continuing
and increasing presence of off-leash dogs at the Beach
. . . ," and (3) improperly deferring environmental
analysis of "the impacts and mitigations for dog use at the
Beach." Appellant had sought an
order requiring respondents to set aside all approvals related to the revised
general plan and to fully comply with CEQA, "including certification of an
adequate environmental impact report and adoption of feasible project
mitigations and alternatives based on findings supported by substantial
evidence in the record."
On appeal from the denial of the
writ petition, appellant Beach Rescue argues that (1) the initial study is
inadequate because it failed to adequately describe the environmental setting
and evaluate the environmental impacts of unleashed dogs at Lighthouse Field
State Beach, (2) the City's approval of the amended plan and adoption of a
negative declaration was improper because it could be fairly argued, based on
substantial evidence, that "the project may have a significant effect on
the environment," and (3) the City's deferral of unleashed dog issues to
future environmental review resulted in prohibited "piecemeal"
environmental review.
We reverse.
A. Background
Lighthouse Field State Beach (LF State Beach) is a state
recreation unit of the state park system that has been designated as a state
beach. (Cal. Code Regs., tit. 14,
§ 4753; see Cal. Code Regs., tit. 14, §§ 4302 [definition of
"unit"]; see also §§ 5019.50 [classification by the State Park
and Recreation Commission required]; § 5019.56 [subclassifications of
state recreation units].) "State
recreation units consist of areas selected, developed, and operated to provide
outdoor recreational opportunities."
(§ 5019.56.) "The
Department of Parks and Recreation has control of the state park
system." (§ 5001.)
The general plan for a unit of the
state park system "serve[s] as a guide for the future development,
management, and operation of the unit."
(§ 5002.2, subd. (a).)
"The resource element of the general plan shall evaluate the unit
as a constituent of an ecological region and as a distinct ecological entity,
based upon historical and ecological research of plant-animal and
soil-geological relationships and shall contain a declaration of purpose,
setting forth specific long-range management objectives for the unit consistent
with the unit's classification . . . , and a declaration of resource
management policy, setting forth the precise actions and limitations required
for the achievement of the objectives established in the declaration of
purpose." (§ 5002.2, subd. (b).)
The Department of Parks and
Recreation is permitted to enter into contracts with other governmental
entities "for the care, maintenance, administration, and control by any
party to the agreement, of lands under the jurisdiction of any party to the agreement
for the purpose of the state park system."
(§ 5080.30.) "The
general plan for a unit of the state park system that is the subject of an
agreement entered into pursuant to this article shall, in addition to the
requirements set forth in Section 5002.2, specifically evaluate and define the
manner in which the unit is proposed to be operated." (§ 5080.31, subd. (a).) Such a general plan must be reviewed
"for a determination that the unit will be operated in a manner that
generally meets the standards followed by the department in its operation of
similar units, that enhances the general public use and enjoyment of, and
recreational and educational experiences at, the unit, and that provides for
the satisfactory management of park resources." (§ 5080.31., subd. (a).)
LF State Beach is located in the
City of Santa Cruz and consists of a field area north of West Cliff Drive, a coastal area south of West Cliff Drive, and a small pocket beach called
"Its Beach." LF State Beach is
operated and maintained by the City under contractual operating agreements.[3]
The original 1984 Lighthouse Field
State Beach General Plan (original plan) contained a general management
guideline, designed to implement the policy of protecting natural wildlife,
that stated: "Pets should be restricted to leashes." The revised general plan establishes four
management areas (coastal, field, monarch butterfly, and willow riparian) and
replaces the general leash requirement with guidelines specific to each
management area, including guidelines pertaining to dogs. In regard to the coastal management area,
including Its Beach, and the field management area, the updated plan provides
that "California Department of Parks and Recreation policies on dogs in
State Parks will be utilized to determine dog use policies
. . . ."
B. CEQA
"CEQA embodies our state's policy that 'the long-term
protection of the environment . . . shall be the guiding criterion in
public decisions.' (§ 21001, subd.
(d). See Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th
106, 112, 62 Cal.Rptr.2d 612.)" (Architectural Heritage Ass'n v. County of Monterey (2004) 122
Cal.App.4th 1095, 1100.) Generally, an EIR must be prepared
whenever "there is substantial evidence, in light of the whole record
before the lead agency, that a project may have a significant effect on the
environment . . . ."
(§ 21082.2, subd. (d); see § 21082.2, subd. (a).)
Under CEQA, a "project"
includes "an activity which may cause either a direct physical change in
the environment, or a reasonably foreseeable indirect physical change in the
environment, and which is any of the following:
[¶] (a) An activity directly
undertaken by any public agency. . . . " (§ 21065.) The implementing administrative guidelines
(Cal. Code Regs., tit. 14, § 15000 et seq. (hereinafter
"Guidelines"); see § 21083) clarifies that
" [p]roject' means the whole of an action, which has a potential for
resulting in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment." (Guidelines, § 15378, subd. (a).) "An activity directly undertaken by any
public agency," such as "the adoption and amendment of local General
Plans or elements thereof," may be a "project." (Guidelines, § 15378, subd. (a)(1),
§ 21065.) " 'Project' is
given a broad interpretation in order to maximize protection of the
environment." (McQueen v. Board
of Directors (1988) 202 Cal.App.3d 1136, 1143.) It is undisputed that the adoption of the
revised general plan for LF State Beach is a "project" within the
meaning of CEQA.
" 'Lead agency' means the
public agency which has the principal responsibility for carrying out or
approving a project which may have a significant effect upon the
environment." (§ 21067; see
Guidelines, § 15367 [defining "lead agency"].) It is undisputed that the City acted as the
lead agency for purposes of CEQA.
"A significant effect on the environment"
is defined as "a substantial, or potentially substantial, adverse change
in the environment." (§ 21068;
see Guidelines, § 15382.) A
"significant effect on the environment" is "limited to
substantial, or potentially substantial, adverse changes in physical conditions
which exist within the area as defined in Section 21060.5." (§ 21151, subd. (b).) Section 21060.5 defines
"environment" as "the physical conditions which exist within the
area which will be affected by a proposed project, including land, air, water,
minerals, flora, fauna, noise, objects of historic or aesthetic
significance." (See Guidelines,
§ 15360 ["environment" defined].)
A lead agency considering a
nonexempt project generally must "conduct an initial study to determine if
the project may have a significant effect on the environment" unless the
lead agency "can determine that an EIR will clearly be required for the
project . . . ." (Guidelines, § 15063, subd.
(a).) The initial study as a
standardized document "is largely a creature of the Guidelines
. . ." and "CEQA refers to [an initial study] only
glancingly (e.g., § 21080, subd. (c)(2))."
(Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359,
1376.) It is now well established,
however, that an initial study is the preliminary environmental analysis (see
Guidelines, § 15365) and its purposes include "[p]rovid[ing] the lead
agency with information to use as the basis for deciding whether to prepare an EIR or negative declaration,"
"[e]nabl[ing] an applicant or lead agency to modify a project, mitigating
adverse impacts before an EIR is prepared, thereby enabling the project to qualify for a
negative declaration," and "[p]rovid[ing] documentation of the
factual basis for the finding in a negative declaration that a project will not
have a significant effect on the environment." (Guidelines, § 15063, subd. (c)(1),
(c)(2), (c)(5).)
The lead agency is "responsible for considering
the effects, both individual and collective, of all activities involved in a
project." (§ 21002.1, subd.
(d).) "When assessing whether a
cumulative effect requires an EIR, the lead agency shall consider whether the cumulative
impact is significant and whether the effects of the project are cumulatively
considerable. An EIR must be prepared if the cumulative
impact may be significant and the project's incremental effect, though
individually limited, is cumulatively considerable. 'Cumulatively considerable' means that the
incremental effects of an individual project are significant when viewed in
connection with the effects of past projects, the effects of other current
projects, and the effects of probable future projects." (Guidelines, § 15064, subd. (h)(1), see
§ 21083, subd. (b)(2).)
When "[t]here is no substantial evidence, in
light of the whole record before the lead agency, that the project may have a
significant effect on the environment," the lead agency must prepare a
negative declaration to that effect.
(§§ 21080, subd. (c), Guidelines, §§ 15064, subd. (f)(3),
15070; see § 21064 ["negative declaration" defined]; Guidelines,
§ 15371 ["negative declaration" defined], 15071 [contents of
negative declaration].) The lead agency
may also prepare a mitigated negative declaration if appropriate.[4] (See § 21080, subd. (c)(2); Guidelines,
§ 15070.)
The CEQA process requires a period for public review
of a proposed negative declaration or mitigated negative declaration. (§ 21091; Guidelines,
§ 15073.) The lead agency must
consider all comments that are received within the public review period. (§ 21091, subd. (d)(1).)
"The decisionmaking body [of the lead agency]
shall adopt the proposed negative declaration . . . only if it finds
on the basis of the whole record before it (including the initial study and any
comments received), that there is no substantial evidence that the project will
have a significant effect on the environment . . . ." (Guidelines, § 15074, subd. (b).) "Prior to carrying out or approving a
project for which a negative declaration has been adopted, the lead agency
shall consider the negative declaration together with comments that were
received and considered . . . ." (§ 21091, subd. (f); see Guidelines,
§ 15074, subd. (b).) The lead
agency must prepare an EIR if it "is presented with a fair argument that a
project may have a significant effect on the environment," even where it
is also "presented with other substantial evidence that the project will
not have a significant effect."
(Guidelines, § 15064, subd. (f)(1); see §§ 21080, subd. (d),
21082.2, subd. (d), 21151, subd. (a); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68.) This is because "an EIR is the key to environmental
protection under CEQA." (Id. at p. 75.)
C. Appellate Review
In a mandamus action challenging a public
agency's quasi-legislative decision on the grounds of noncompliance with CEQA,
"the inquiry shall extend only to whether there was a prejudicial abuse of
discretion." (§ 21168.5; see
Code Civ. Proc., § 1085 [a writ of mandate lies "to compel the
performance of an act which the law specially enjoins, as a duty resulting from
an office, trust, or station . . . "].) "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."
(§ 21168.5, italics added.)
The Legislature has declared: "[I]t is the policy of the state that
noncompliance with the information disclosure provisions of this division which
precludes relevant information from being presented to the public agency, or
noncompliance with substantive requirements of this division, may constitute a
prejudicial abuse of discretion within the meaning of Sections 21168 and
21168.5, regardless of whether a different outcome would have resulted if the
public agency had complied with those provisions." (§ 21005, subd. (a).) The Legislature has further explained that it
intends that the courts, in undertaking judicial review pursuant to section
21168.5, shall continue to follow the established principle that there is no
presumption that error is prejudicial.
(§ 21005, subd. (b).) Thus,
"[f]ailure 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.
[Citations.]" (Bakersfield Citizens for Local Control v. City
of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.)
D. Administrative Record
Despite the
original general plan's guideline specifying that pets should be on leash, the
City of Santa Cruz, through its Parks and Recreation Director, permitted
off-leash dog use of Lighthouse Field and Its Beach during designated hours
under the authority of 8.14.200 of the Municipal Code beginning in early 1993.[5] A memo from the City's Park and Recreation
Department evaluating the impact of the changes in dog use laws along West
Cliff Drive and Lighthouse Field, dated August
31, 1993,
indicated that "[i]t was the Department's hope the relaxation of the laws
would lead to educate[d] dog owners which would in turn lead to cooperation
with law enforcement and the potential for further relaxation of the
laws." However, the memo
acknowledged that the Department's hopes had not been realized and recognized
that there was a considerable and increasing problem with defecation throughout
the field and Its Beach, dogs were frequently being seen off-leash during
on-leash hours, and the "signage and pooper-scooper bag stations" had
been "severely vandalized."
In a letter dated August 17, 1999, responding to a letter from a visitor complaining
about off-leash dogs beyond the authorized time, the Chief Ranger of the Santa
Cruz District of the California Department of Parks and Recreation explained
that "Lighthouse 'State' park is administered by the City of Santa Cruz
Parks Department under an operating agreement and is not patrolled by State
Park Rangers or other staff. [The
City's] dog policy is not the same as the State policy."
The planning process for the purpose
of updating the original plan commenced in 2001. The City, through its Parks and Recreation
Department, held a community workshop on November 15, 2001 to identify issues and receive
public input. The Parks and Recreation
Department developed an outline of "preliminary concepts." The draft "preliminary concepts"
provided as to dog use that (1) dog use would be restricted in sensitive
habitat areas, (2) off-leash dog use hours would be extended to sunrise to
sunset in non-sensitive areas of the field, and (3) off-leash dog use hours
would be extended "on Its Beach during non-peak use (late fall through
spring)." The proposed preliminary
concepts were presented to the public at a community workshop held in March
2002.
The Park and Recreation Commission
met in April, May, and June 2002 and the agenda items included update of
original general plan and dog use.
Numerous public comments regarding dog use, pro and con, were submitted to
the City indicating strong feelings on both sides of the issue.
A posted order of the District
Superintendent of the Santa Cruz District of California's Department of Parks
and Recreation, effective August 10, 2002, authorized off-leash dog use of LF
State Beach from sunrise to 10:00 a.m. and from 4:00 p.m. to sunset.[6] Under the order, between the hours of 10:00
a.m. and 4:00 p.m., dogs were permitted on leash in
the field area and were not permitted on Its Beach.
The City's Department of Parks and
Recreation prepared an administrative draft of the revised general plan, which
was circulated for review. This version
explicitly allowed off-leash dog use in certain areas. After reviewing the draft, the District
Superintendent of the Santa Cruz District of the California Department of Parks
and Recreation, by letter dated January 29, 2003, recommended that all references to
off-leash dog use be deleted and the following language be inserted: "California Department of Parks and
Recreation policies on Dogs in State Parks will be utilized to determine dog
use at Lighthouse [F]ield [S]tate Beach."
A memo indicates that this recommendation was implemented and the
revised general plan reflects those changes.
The City published a notice of
intent to issue a negative declaration regarding the revised general plan. The notice stated that the public review
period for the proposed negative declaration ran from February
5, 2003
through March 6, 2003.
The State Clearinghouse distributed the proposed negative declaration to
selected state agencies and departments for review and comment.
The City received many comments from
the public regarding the effect of dogs, especially unleashed dogs, on
visitors' enjoyment and use of the State Beach.
The comments included the following adverse remarks regarding dogs. "[T]he Field at present resembles an
urban wasteland, a neglected backyard.
Its primary present use and future if the draft report is accepted is as
a dog-running area." "[B]oth
the field and the Its Beach have somehow become the exclusive domain of dogs.
. . . [A]nyone who wants to stroll on Lighthouse Field and/or enjoy
Its Beach had better be prepared to deal with piles of dog poop, scary
unleashed and uncontrolled dogs, and their self-righteous owners." "Irresponsible dog owners have turned
Its Beach into a dog toilet and dogs (have the) run of the beach even during
the hours when dogs are not permitted. . . . I have been 'run over'
and accosted by dogs on numerous occasions . . . . It is no longer pleasant to go to Its Beach
even during the hours reserved for people without dogs because dogs are always
there." "[T]he clear policy is
to allow dogs off leash at the beginning and end of each day: and a defacto [sic] policy made by the City of allowing
off-leash dogs in the park 24 x 7 by reason of non-enforcement of the existing
law . . . ."
"It is obvious and well-documented that the biggest single cause of
sensitive habitat degradation in LFSB is the relatively recent introduction of
huge numbers of dogs that are allowed to run free." "I paid a premium to live at my favorite
park and beach (Its) but now I don't even use them because they are so
dangerous and unpleasant due to uncontrolled dogs everywhere." "The current daily heavy input to the
park of dog feces and urine, and uncontrolled dog behavior are harmful to the
wildlife and environment and to people.
The current dominant use of Lighthouse Field State Beach is as a mecca for off-leash dog use
. . . . I and my children have personally been snarled at and
chased 3 times by unleashed dogs in the park. . . . As a result I and
many other people I know, including neighborhood dog owners, avoid using Lighthouse Field State Beach, including Its Beach and the field,
solely because of the heavy off-leash dog usage of the park." "Due to confusion about the rules
coupled with lax enforcement it has not been uncommon to see as many as 60 dogs
running loose on the beach at one time. . . . The sands which are
typically used by human visitors as a place to lay [sic] down and sit are a place where dogs prefer to defecate and
urinate. . . . [¶] Other dog behaviors that are particularly
unsuited to beaches where humans congregate:
[¶] Constant barking
. . . . [¶] Whining, yowling, crying and other forms of
dog complaint. [¶] Fighting; chasing; digging (with flying sand
in all directions); begging for food; stealing food that is left unattended;
running over people's towels and blankets; shaking off water next to people
other than owner, chasing . . . animals, wild or domesticated;
. . . violating personal space of humans . . . and on and
on."
The California Coastal Commission
reviewed the proposed revised general plan, initial study, and negative
declaration. In a letter dated March
5, 2003, it
offered the following feedback regarding dogs:
"Perhaps the most controversial and publicly discussed aspect of
the Plan includes whether to continue to allow dogs at Lighthouse Field State Beach. . . . [T]he Plan should
include provisions for more enforcement (by State or City officials or
volunteers) of the dog restrictions to ensure that beach goers . . .
are not inundated with dogs during the prohibited
hours. . . . Additional
enforcement and signage would help ensure that those who do not wish to share
the beach with dogs are able to do so during the peak beach-going times of
day." It also recommended
strengthening the language of the updated plan to ensure adequate protection of
resources by, among other things, "prohibiting," rather than
"discouraging," humans and dogs from entering seasonal pond areas and
mandating, rather than suggesting, fencing to prevent seasonal ponds from
excessive damage.
The City of Santa Cruz Planning
Commission's Agenda Report, dated March 10, 2003, states: "The State directed that specific dog
use policies should not be addressed in the LFSB General Plan in as much as
this represented an operational issue to be dealt with at the local level as
opposed to a policy based land use issue.
Therefore, specific dog-use policies and regulations are not included in
the Draft Plan."
In a letter dated March 12, 2003, the District Superintendent of the Santa Cruz
District of the California Department of Parks and Recreation clarified that
the Department's position was that detailed dog use policies should be developed
at the local community level and not be included in the General Plan and the
City should "serve as primary decision maker regarding specific dog use
issues" since the state beach is a locally operated and managed unit. The District Superintendent advised the
City: "Given that this State Park
unit is a locally operated and managed unit, the more appropriate forum is for
the City to serve as primary decision maker regarding specific dog use issues. The City's recommendation would then be
forwarded to the local State Park District Superintendent. Upon concurrence with this recommendation an
appropriate Posted Order regarding dog use policies would be issued."
The minutes of the City's Parks and
Recreation Commission meeting on March 13, 2003 show that during the public hearing
both the Director of the City's Parks and Recreation Department and the
District Superintendent of the Santa Cruz District of the California Department
of Parks and Recreation separately announced that the dog issues should be addressed
at a future time. Following public
comment, a motion carried to add language to the revised general plan
acknowledging some users do not comply with dog use regulations at Its Beach
and stating "it appears dog use at Its Beach has increased over the
years." The Parks and Recreation
Commission then passed a motion to recommend to the City Council that it adopt
the negative declaration and approve the revised general plan.
The draft minutes of the City's
Planning Commission meeting on April 3, 2003, show that a staff member of the
City's Parks and Recreation Department announced that dog use policies would be
discussed at a future date. Planning
Commissioner Louie "expressed she was very frustrated with being told that
discussion regarding dog presence was not appropriate because the issue was
going to be addressed at another time under a different forum and with being
asked to adopt a Negative Declaration."
She "questioned how consideration could be given to approve the
initial study without knowing what the policies pertaining to dogs and the
field would be." Planning
Commissioner Foster "acknowledged the problem with prohibiting dogs from
certain areas of the field and at the same time not being allowed to discuss
it." Planning Commissioner Gaffney
stated that she believed "allowing dogs off leash in any area results in a
bigger impact than allowing them on leash in every area." The Planning Commission passed a motion, by a
vote of five to two, to recommend to the City Council that it not adopt
the negative declaration and revised general plan.
The City Council Agenda Report,
dated March 10, 2003 for its April
22, 2003
meeting, stated in regard to the proposed adoption of the negative declaration
and the revised general plan: "The intent of the revision to [the original
plan] was to increase the protection of sensitive resources by restricting
public use (people and dogs) to designated trails and viewing areas within the
habitat areas. The Planning Commissioners
expressed concern that the elimination of the words 'restricted to leashes',
would imply that dogs would be allowed in the park off-leash. With this assumption, there was further
concern that the Initial Study/Negative Declaration and the LFSB General Plan
did not consider the impacts of off-leash dogs on the park areas not fenced or
protected. [¶] The Initial Study recognized that dogs are
present at the park and are allowed on and off-leash since 1993 per the
approval of the Parks and Recreation Director and a posted order of the District
of the [sic] Superintendent of the
California Department of Parks and Recreation.
As dogs are currently allowed in the park on and off-leash, the proposed
change to [the Original Plan] will not introduce dogs into the park nor will it
establish off-leash dog use as a new policy.
Therefore, given the current 'baseline' environmental setting, the
Revised LFSB General plan would not result in significant environmental
impacts."
Following the public meeting of the City Council on April
22, 2003,
the City Council unanimously passed a resolution adopting the negative
declaration and adopting the revised general plan with text amendments to the
plan that strengthened restrictions on dog use of environmentally sensitive
areas. The City Council's April 22, 2003 resolution also adopted a related implementing
amendment to the City's General Plan/Local Coastal Program and directed that
the "City Manager or his designee" submit the amendment to the
California Coastal Commission for final certification.
The new text included in the general plan by the City
Council recognized that some users of LF State Beach do not comply with dog use
regulations, "[o]ff-leash dog use at Its Beach appears to have increased
over the years," and dog use was "the most controversial and publicly
discussed issue during this planning process." The new text acknowledges: "Dog use, in
particular, generated the most community input.
At these meetings, there was considerable community debate about
off-leash dog use." It explains:
"The California Department of Parks and Recreation considered specific dog
use regulations to be an operational issue that is more appropriately addressed
at the local level, and subsequently determined that specific dog use policies
regarding leash regulations and hours of use should not be included in the
General Plan."
E. Adequacy of Initial Study
Appellant Beach Rescue asserts that
the City failed to proceed in the manner required by law by not properly
preparing the initial study.
Specifically, appellant charges that the initial study is inadequate
because the City failed to fully set forth the baseline environmental setting
and failed to fully analyze the impact of unleashed dogs.
1. Content of Initial Study
The initial
study indicated that the habitat values of the field management area, which
"features 26 ½ acres of grassland with scattered Monterey cypress trees and seasonal
ponds," are limited "[d]ue to the dominance of non-native species and
other factors." The initial study
determined that "[w]ildlife habitat values in the field area are moderated
due to several factors," including "the relatively minimal extent of
the willow riparian forest; degraded condition and seasonal nature of the
drainage swale and ponds; abundance of non-native starlings which out compete
native species for tree cavity nests; the fragmented and relatively isolated
nature of the property from undisturbed open space areas; the urbanized
residential setting; and the use of the site by people and dogs
. . . ."
According to the initial study, the
field's primary value was its "undeveloped open space
character." The initial study
explained that "Lighthouse Field has a long history of human disturbance
and plant introductions." In regard
to recreation and trail use authorized under the revised general plan, the
initial study observed: "Informal
pathways that are redundant or conflict with resource protection will be
removed. [¶] Dog use will be consistent with the
California Department of Parks and Recreation policy."
The initial study observed that "[n]on-native
annual grassland is the most prevalent plant community at Lighthouse Field State Beach, occurring in large expanses in the
western and central areas of the field."
It identified only one special status plant species, the artist popcorn
flower, but anticipated no significant impacts.
The initial study explained that the revised general plan "calls
for continued, low-intensity, passive recreational uses within the southwestern
portion of the site where "artist's popcorn flower may exist along with
other native grasses and plant species.
One maintained east-west trail is located within this area."
The initial study recognized the
presence of seasonal ponds within the field area. It explained that "[t]he habitat value
of these seasonal ponds varies, depending on the associated wetland vegetation
and disturbance by recreational use.
Some of these ponds have been more heavily impacted by human and dog use
. . . ." It
concluded: "The revised General
Plan supports protection and restoration of seasonal ponds. Both human and dog use are discouraged in
these areas, and minimal or temporary fencing is suggested to prevent seasonal
ponds from excessive damage."
The initial study recognized that the monarch
butterfly and willow riparian management areas contain the most environmentally
sensitive resources. The initial study
observed: "Dog, as well as human,
use is prohibited in the Monarch Butterfly and Willow Riparian Management Areas
except on designated trails." It specified: "The revised General Plan calls for
protection and enhancement of the monarch butterfly and willow riparian
areas. Both human and dog use are
prohibited in these areas except on designated trails. . . . [T]he
revised General Plan seeks to protect the willow riparian Management Area[] by
prohibiting all use, including human and dogs, closing unauthorized trails, and
installing fencing to discourage access.
The main east-west trail route would be maintained as a multi-use trail,
including for dogs."
The initial study further stated: "The revised
LFSB General Plan calls for prohibiting public access (including humans and
dogs) into the riparian area except on designated trails. This will be accomplished through signage,
fencing, and/or designated trails. Some
pond areas at Lighthouse Field State Beach have been disturbed in the past due
to human and dog use, although these areas have largely been devoid of
vegetation and are of low habitat value.
The proposed management guidelines for the Willow Riparian Management
Area include installation of fencing as needed to discourage access into
sensitive habitat areas, which would largely protect these areas from intrusion
by either humans or dogs." It also
indicated that the management guidelines provided for the closing of
"unauthorized informal trails" "in order to promote recreational
use on designated trails" and the use of "[s]ignage and fencing (such
as split rail wood fencing)" "as necessary to discourage access into
sensitive riparian areas."
In regard to the coastal management
area, which encompasses "8 ½ acres along the coastal bluffs" and all
visitor facilities, the initial study recognized there are "valuable
natural resources along the coastal bluffs and near shore waters that must be
protected" but "the primary intent of this area is to provide for
visitor use." The initial study
identified ongoing coastal bluff erosion as the main environmental
concern. It stated that "[b]luff
vegetation is dominated by iceplant . . . , a perennial non-native
succulent" and "[w]hile iceplant is often utilized to minimize
erosion, it provides little habitat value." It also reported that "[o]ther
non-native weeds also occur along much of the bluff top."
The initial study reported that
"[b]irds are the primary wildlife species utilizing the open field,
coastal bluffs, and shoreline of Lighthouse Field State Beach" and indicated a resident
species had been observed nesting in the grassland area during a recent
survey. However, it noted that the field
appeared to have "minor value as nesting habitat for long-distance
migrants." It concluded that
"[t]he proposed riparian restoration project would result in enhanced
wildlife habitat and potential nesting in these areas
. . . ."
The initial study concluded only
four of the special status wildlife species known to exist in the vicinity were
considered "significant users" within the boundaries of LF State
Beach, namely monarch butterflies, peregrine falcons, merlins, and black
swifts. As to monarch butterflies, the
initial study reported: "The main habitat area is proposed to be protected
with fencing and signage in order to keep people and dogs out of the protected
overwintering habitat."
Regarding peregrine falcons and
merlins, the initial study stated "Peregrines primarily nest on ledges and
crevices of steep, inaccessible coastal bluffs and on cliff faces at inland
locations" but "[c]urrently . . . do not nest on the coastal bluffs
within the study area" and merlins "do not nest in California." It concluded that the revised general plan
would "not result in new development or disruption of the existing
Lighthouse Field grassland habitat" and "[p]roposed management
guidelines seek to maintain and enhance existing habitat areas."
As to the black swift, the initial
study stated that "in the past 5 years, no nests have been reported"
but "potential nesting habitat is present along the bluffs within the
study area." It also recognized
that pigeon guillemots nest in cliff crevices and "are fairly common in
subtidal and intertidal marine habitats and on rocky shores." However, since the revised general plan would
not "result in new development on or adjacent to the coastal bluffs,"
the initial study concluded that the plan would "not result in impacts to
black swifts or pigeon guillemots, should nesting be present."
In regard to water quality at Its
Beach, the initial study acknowledged that "[c]oncerns have been raised
about the impact of dog feces . . . ." The initial study indicated that water quality
sampling had been conducted at Its Beach.
It determined that the project would not substantially degrade water
quality. The initial study
explained: "[R]eview of water
quality testing reveals that bacterial levels at Its Beach are generally well
within acceptable levels, and limited exceeedances [sic] have often occurred during winter storm periods after heavier
storm periods. Dogs can contribute to
higher bacterial levels, but other animals (sea lions, seabirds) are also
potential sources. There is no current
evidence that dogs are contributing significantly to infrequent exceedances of
water quality. The City does provide
bags for cleaning up after pets at Its Beach, as well as at the field
area."
2. Environmental Setting
Appellant maintains that the initial
study's description of the environmental setting is "fatally flawed"
in that it "fails to provide a useful and accurate baseline" "by
neglecting to address the extent, intensity, or effects of current dog use
beyond citing on-leash and off-leash hours and conceding that unleashed dog use
is a controversial problem."
Appellant points to the brief statements in the initial study that
describe the existing recreational uses.
The initial study states that "the field area is also a highly
valued recreational resource for walking and visitors with dogs" and
indicates that dogs are permitted off-leash on Its Beach and in the field
during specified hours "under a posted order issued by the District
Superintendent of the California Department of Parks and Recreation."
Appellant Beach Rescue asserts that the initial
study's description of the environmental setting is inadequate because it fails
to make clear that "off-leash dogs have created an ever-increasing problem
at Lighthouse Field." Appellant
complains that the initial study's "environmental setting" component
"provided no context against which to measure the ongoing, increasing,
incremental effects of off-leash dog use" and failed to "review the
damaging environmental effects relating to current use of Its Beach and
Lighthouse Field by off-leash dogs, nor does it discuss the extent to which dog
use has increased in recent years or in what manner and degree."
Under the CEQA Guidelines, an initial study must
"contain in brief form: [¶]
(1) A description of the project including the location of the
project; [¶] (2) An identification of the environmental
setting; [¶] (3) An identification of environmental
effects by use of a checklist, matrix, or other method, provided that entries
on a checklist or other form are briefly
explained to indicate that there is some evidence to support the entries.
. . . [¶] (4) A discussion of ways to mitigate the
significant effects identified, if any;
[¶] (5) An examination of whether
the project would be consistent with existing zoning, plans, and other
applicable land use controls; [¶] (6) The name of the person or persons who
prepared or participated in the initial study." (Guidelines, § 15063, subd. (d), italics
added.) The Guidelines' sample
environmental checklist form is indicative of the general level of brevity that
is acceptable. (See Guidelines, Appendix
G.)
The Guidelines define the term
"environment," consistent with statute, to mean "the physical
conditions which exist within the area which will be affected by a proposed
project including land, air, water, minerals, flora, fauna, ambient noise, and
objects of historic or aesthetic significance." (Guidelines, § 15360, see
§ 21060.5.) The Guidelines do not
specially define "environmental setting" with regard to an initial
study but do state in regard to EIR preparation: "An EIR must include a description of the
physical environmental conditions in the vicinity of the project, as they exist
at the time the notice of preparation is published, or if no notice of
preparation is published, at the time environmental analysis is commenced, from
both a local and regional perspective.
This environmental setting will normally constitute the baseline
physical conditions by which a lead agency determines whether an impact is
significant." (Guidelines,
§ 15125, subd. (a), italics added.)
An EIR's description of the environmental
setting must be sufficient to allow "an understanding of the significant
effects of the proposed projects and its alternatives" but "no
longer." (Guidelines, § 15125,
subd. (a).) That description should
place "[s]pecial emphasis" "on environmental resources that are
rare or unique to that region and would be affected by the project" and
"must permit the significant effects of the project to be considered in
the full environmental context."
(Guidelines, § 15125, subd. (c).)
However, the Guidelines merely
require an initial study, in contrast to an EIR, to briefly identify the
environmental setting. (Guidelines,
§ 15063, subd. (d)(2); cf. Guidelines, § 15125, subd. (a).) An initial study is only a "preliminary
analysis" (Guidelines, § 15365) and the regulatory requirements
regarding its contents are not as demanding as those imposed upon an EIR.
(See Guidelines, § 15063, subd. (d), cf. Guidelines, § 15120
et seq.) "[A]n initial study is
neither intended nor required to include the level of detail included in an EIR." (Guidelines, § 15063, subd. (a)(3).)
In this case, the initial study
described the "environmental setting" with some specificity for
several pages and set forth the existing site conditions, the existing
facilities, and existing recreational uses.
It contains a brief description of the existing physical conditions,
including the topography and types of habitats and vegetation. It notes the existence of "non-native
annual grasslands," "scattered Monterey cypress and eucalyptus trees,"
"[c]entral coast arroyo willow riparian forest, seasonal ponds, and
associated wetland vegetation," "scattered remnants of native grasses
and wildflowers," a "mixed cypress/eucalyptus grove" serving as
an "over-wintering site for monarch butterflies," and unpaved trails
providing public access to the natural open space. The initial study also briefly mentions the
use of the area by visitors with dogs.
Appellant does not suggest that the identification of the existing
physical conditions was inaccurate insofar as it went.
Most of the cases cited by appellant
in support of its claim that the initial study was deficient in failing to
provide an adequate description of the environmental setting involved a
challenge to an EIR, not an initial study.
(See e.g. Friends of the Eel River v. Sonoma County Water Agency
(2003) 108 Cal.App.4th 859; Save Our Peninsula Committee v. Monterey County
Bd. of Supervisors (2001) 87 Cal.App.4th 99; Riverwatch v. County of San
Diego (1999) 76 Cal.App.4th 1428; County of Amador v. El Dorado County
Water Agency (1999) 76 Cal.App.4th 931; Galante Vineyards v. Monterey
Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109.) None of these cases demonstrate that the
portion of the initial study's identifying the environmental setting was
deficient.
Quoting Fat v. County of
Sacramento (2002) 97 Cal.App.4th 1270, 1278 (Fat), appellant asserts that "Guideline section 15125 'supplies
the definition of "environmental setting" against which environmental
impacts are measured at each of the three steps in the CEQA process' beginning
with the Initial Study." In Fat,
the County of Sacramento approved a negative declaration and conditional use
permit allowing the operation and expansion of an airport, which was "a
privately owned public facility."
The sole issue in Fat, supra,
97 Cal.App.4th 1270 was whether the county had abused its discretion in
considering the physical conditions that existed in 1997 when the application
for a conditional use permit was submitted, rather than in 1970 when CEQA was
enacted, as the baseline for its initial study.
(Id. at pp. 1272-1275.)
Although the airport had "developed over a period of nearly 30 years
without County authorization" and "there was evidence of
environmental damage during that period" (id. at p. 1281), the
initial study "describe[d] the existing environmental setting" rather
than some earlier environmental setting.
(Id. at p. 1280.)
The appellate court in Fat
found it significant that Guideline section 15125, subdivision (a), had been
amended to define "environmental setting" in the context of an EIR as "the physical environmental
conditions in the vicinity of the project, as they exist at the time . . .
environmental analysis is commenced, from both a local and regional
perspective" and "[t]his environmental setting will normally
constitute the baseline physical conditions by which a lead agency determines
whether an impact is significant" (Guidelines, § 15125, subd. (a)). (Fat,
supra, 97 Cal.App.4th at pp. 1277-1280.)
The appellate court concluded that substantial evidence supported
"the County's decision to use the 1997 baseline under the general rule set
forth in section 15125, subdivision (a) of the Guidelines" for its
determination that the proposed project would not result in significant
environmental impacts (id. at p.
1281) and the county had proceeded in the manner required by law. (Id.
at p. 1272.)
Guidelines section 15125 was used in
Fat for the limited purpose of
analyzing whether the lead agency had selected the proper reference point in
time for assessing the environmental impact of the project. (Fat,
supra, 97 Cal.App.4th at pp. 1277-1278.)
Appellant agrees that the appropriate baseline time for the initial
study in this case was 2001, not 1993 when unleashed dogs were first allowed
at LF State Beach. The Fat opinion does not establish
that Guidelines section 15125 controls the degree of detail necessary in an
initial study's identification of the environmental setting.
The initial study in this case met
the minimum requirements of Guidelines section 15063, subdivision (d)(2), of
briefly identifying the baseline environmental setting. The City was not required, as part of a brief
"environmental setting" description, to analyze the extent to which
off-leash dog use had caused or contributed to the existing environmental
conditions.
3. Analysis of Impact of Unleashed Dogs
Appellant Beach Rescue charges that the initial
study failed to adequately analyze the impact of unleashed dogs on the
environment given that the updated plan eliminated the original plan's
guideline restricting pets to leashes.
Appellant complains that "the [i]nitial study fails to recognize
the obvious, well-documented fact that the biggest single cause of sensitive
habitat degradation in the area is the recent introduction of huge numbers of
dogs allowed to run free." It
directs us to comments in the record indicating "huge numbers" of
uncontrolled dogs have been allowed to run free, leash rules were frequently
not enforced, and this situation has adversely affected other visitors to LF
State Beach. It queries whether
off-leash dogs have created environmental problems and charges that
"[s]omeone reading the [i]nitial [s]tudy would have no idea that off-leash
dogs have created an ever-increasing problem at Lighthouse Field." Appellant also complains that the initial
study fails to "address the potential aesthetic and recreational changes
that will result from unstudied fencing" and "there is no need for
fencing if the current policy of dogs on leash is honored."
The City maintains that the updated general plan
"did nothing to change applicable regulations governing off-leash dog
use" and "did nothing to effect a change in actual off-leash dog use
at the park." It asserts that
"[w]ith respect to off-leash dog use, the City Council therefore made a
policy decision to do nothing more than preserve the long-established status
quo."
In contrast to an EIR, an initial study is not required
to consider or discuss alternatives to a project. (See Guidelines, § 15063, subd. (d)
[contents of initial study]; § 21100, subd. (b)(4) [EIR must include alternatives to the
proposed project]; Guidelines, § 15126.6 [consideration of alternatives to
proposed project in EIR]; see also §§ 21002 [state policy that proposed
projects should not be approved if there are feasible alternatives that would
substantially lessen the significant environmental effects], 21002.1, subd. (a)
[purpose of an EIR is to identify alternatives to the project], 21003, subd.
(c) [state policy that an EIR emphasize feasible alternatives to projects].) Thus, the City was not obligated to evaluate
alternatives to the fencing required under the updated plan in its initial
study. However, insofar as appellant is
arguing that the elimination of the leash requirement represents a policy
shift, we think that is a completely fair characterization.
We asked the parties to discuss in supplemental
briefing whether section 4312 of title 14 of the California Code of
Regulations, which generally requires any dog brought into a unit under control
of the Department of Parks and Recreation to be "on a leash of no more
than six feet in length" (Cal. Code Regs., tit. 14, § 4312, subd.
(e)), represents a California Department of Parks and Recreation policy on dogs
in state parks. The City, City Council,
and the California Department of Parks and Recreation maintain that this
administrative regulation is not a policy level determination and, furthermore,
"explicitly authorizes the promulgation of park-specific off-leash dog use
regulations at the local level."[7] They reassert: "[I]t is the position of
the City and State Parks that the Lighthouse Field State Beach off-leash dog
use rules at issue in this proceeding were legally established in accordance
with all applicable statutes, regulations and ordinances in 1993, and that
off-leash dog use at the park has continued, as permitted by the 1993 rules,
without interruption since those rules were adopted. . . . Thus, when
applying the legally applicable 'existing environment/baseline' principles, it
is readily apparent that the Administrative Record testimony and documentation
cited by Appellant . . . are of limited relevance. None of that evidence is probative of the
germane incremental difference between environmental conditions in place at the
park as of the 2001 'baseline' date and ensuing environmental conditions that
can be expected as a result of the General Plan Update's
implementation." They are adamant
that the City was entitled to view dog usage as part of the existing
environmental baseline.
In addition to contending that application of
environmental baseline principles to the "relevant record evidence"
"validates the City's decision to prepare and adopt a Negative
Declaration," respondents argue that new restrictions on dog use provide
for "a net decrease in adverse environmental impacts that might be
sustained as a result of off-leash dog use . . . ." They insist that, since there is no
disagreement "the proper baseline is the park's 2001 environmental
setting," the initial study "provided more than sufficient relevant
information" and was legally adequate.
We find several flaws in respondents' analysis. First, respondents ignore the fact the
general plan is the primary management document guiding the State Beach's future operation and
management. (See § 5002.2, subd.
(a).) It provides the framework for
ongoing decisions regarding the management and operation of the State Beach.
The revised dog guidelines unquestionably alter the management direction
for the State Beach regarding off-leash dog use, which
was previously set by the original plan.
(See § 5002.2.) The fact
that the City disregarded or failed to enforce the original leash guideline in
the past does not change the scope of CEQA review in the present since the City
is supposed to take its ongoing management direction from the general
plan. The expectation is that revisions
to the general plan will govern City's prospective actions and decisions
regarding the LF State Beach, including those involving dogs. In habitat areas not identified as
environmentally sensitive and accessible to dogs under the revised plan, the
new open-ended dog guidelines provide no parameters regarding unleashed dog use
and seemingly allow for unchecked increases in unleashed dog use, including the
expanded use contemplated by the City in its "preliminary concepts."
Another flaw in respondents' reasoning is that the
environment has been defined by statute and implementing administrative
regulations to mean the existing physical conditions. (§ 21060.5; Guidelines, §§ 15360,
15382, see §§ 21100, subd. (d), 21151, subd. (b).) While the physical impacts of established
levels of a particular use have been considered part of the existing
environmental baseline (see Fat, supra, 97 Cal.App.4th 1270, 1272
[existing airport facility]; Save our Peninsula Committee v. Monterey County
Bd. of Supervisors, supra, 87 Cal.App.4th 99, 102 [existing water use]; Fairview
Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242 [existing
traffic levels]; Leonoff v. Monterey County Bd. of Supervisors (1990)
222 Cal.App.3d 1337, 1349-1353; [existing traffic levels]), nothing in the
baseline concept excuses a lead agency from considering the potential
environmental impacts of increases in the intensity or rate of use that may
result from a project. In this case, as
already stated, the elimination of the leash requirement in the primary management
document not only permitted continued off-leash dog use at existing levels of
impact in the areas accessible to dogs but also left the door open to
continuing increases in such off-leash dog use.
Yet, the City never indicated in its initial study that it had
considered the potential environmental impact of the policy change regarding
leashes. To the contrary, it appears the
City incorrectly ignored the possibility of increases in visitors with
off-leash dogs resulting from adoption of the revised general plan due to its
view of the environmental baseline concept.
"Where a physical change is caused by economic or social effects of
a project, the physical change may be regarded as a significant effect in the same
manner as any other physical change resulting from the project." (Guidelines, § 15064, subd. (e); see
§§ 21080, subd. (e)(2); 21082.2, subd. (c).)
While the updated general plan should be commended
for being more protective of the State Beach's environmentally sensitive
resources than the original plan, we must reject the City's advocacy of a
"net" environmental analysis.
Any potential significant environmental effect triggers the EIR requirement (§ 21080, subds.
(c) and (d)), even if the plan revisions together provide a "net" or
overall positive for the environment.
The Guidelines provide: "If the agency determines that there is
substantial evidence that any aspect of the project, either individually
or cumulatively, may cause a significant effect on the environment, regardless
of whether the overall effect of the project is adverse or beneficial, the
lead agency shall do one of the following:
[¶] (A) Prepare an EIR or
[¶] (B) Use a previously prepared
EIR which the lead agency determines
would adequately analyze the project at hand, or [¶]
(C) Determine, pursuant to a program EIR, tiering, or another appropriate
process, which of a project's effects were adequately examined by an earlier EIR or negative declaration.
. . . The lead agency shall then ascertain which effects, if any,
should be analyzed in a later EIR or negative declaration." (Guidelines, § 15063, subd. (b)(1),
italics added.) "The lead agency
shall prepare a negative declaration if there is no substantial evidence that the
project or any of its aspects may cause a significant effect on the
environment." (Guidelines,
§ 15063, subd. (b)(2), italics added.)
Once a lead agency has identified a significant effect, a primary
purpose of an initial study is to enable the lead agency "to modify a
project, mitigating adverse impacts before an EIR is prepared, thereby enabling the
project to qualify for a negative declaration." (Guidelines, § 15063, subd. (c)(2).)
This case is not like Black Property Owners Assn.
v. City of Berkeley (1994) 22 Cal.App.4th 974, which the City cites. In Black Property Owners Assn.,
nonprofit property owner associations challenged the City of Berkeley's compliance with CEQA in updating
the housing element of its general plan as statutorily mandated. (Id. at p. 978.) "[T]he City conducted an initial study
under CEQA to determine whether an EIR was necessary because the draft
update contemplated possible construction of 747 additional housing units
between 1990 and 1995. The initial study
indicated that this new construction would not result in adverse environmental
effects and would instead have beneficial effects. Based on this study, a negative declaration
was prepared." (Ibid.)
The appellate court recognized: "Because general
plans embody fundamental land use decisions that guide future growth and
development of cities and counties, they have the potential for resulting in
ultimate physical changes in the environment. . . . [W]hen a proposed amendment to a general plan
is the subject of an initial study, in most cases the agency will not be required
to assess the environmental effects of the entire plan or preexisting land use
designations. Instead, the question is the potential impact on the existing
environment of changes in the plan
which are embodied in the amendment.
[Citations.]" (Id. at
p. 985.)
The appellate court determined the City of Berkeley had complied with CEQA in that
instance and "the City's acknowledgment of its existing housing-related
ordinances in its update was not an aspect of the project necessitating
environmental review." (Id.
at p. 986.) It explained: "Because
the revision was a project as defined by CEQA and the possibility existed that
it might have a significant effect on the environment, the City conducted the
necessary initial study. Consistent with
its duty to assess the effects on the physical environment of any proposed
changes in the element, the initial study analyzed the potential impact of the
contemplated new housing construction and concluded that beneficial
environmental effects would result. [Fn.
omitted.] Because no changes were
proposed in the housing-related ordinances, no assessment of their
environmental effect was required by CEQA." (Id. at p. 985.)
In Black Property Owners Assn., supra, 22
Cal.App.4th 974, the parties did not dispute that the new housing construction
contemplated by the revised general plan would not have a potentially
significant effect on environment. (Id.
at p. 985, fn. 7.) Here, the
environmental impact of omitting the leash guideline is disputed. Most significantly, in Black Property
Owners Assn., the existing housing-related ordinances were merely described
in the general plan and the revisions did not affect them. (Id. at p. 985.) In this case, the revisions in the general
plan pertaining to the leashing of dogs will affect the City's enactments and
rules governing dogs at the State Beach in that the City is expected to
conform its management to the general plan.
This case has some similarity to City
of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, in which
a mischaracterization of the project resulted in an inadequate initial
study. In that case, the County of San Bernardino approved amendments to its general
plan "relating to land use regulation of unincorporated territory located
within a city's 'sphere of influence' " and adopted a negative
declaration. (Id. at p.
403.) Two cities filed petitions for a
writ of mandate on the ground that the county failed to comply with CEQA by not
preparing an EIR. (Ibid.)
The County's initial study
characterized the project as a clarification of the County's land use planning
authority and development approval discretion in sphere of influence areas and
stated that " '. . . [t]he wording changes proposed in
the amendment are necessary to ensure that policies meant to promote
cooperation with cities cannot be interpreted as a forfeiture of the authority
of the County Board of Supervisors.' " (Id. at pp. 404, 406.) The lower court issued the writ of mandate
after finding that "the amendments, instead of clarifying existing policy,
substantially changed the County's land use policies pertaining to
unincorporated territories within various spheres of influence," "the
County failed to gather facts necessary to perform an adequate environmental
analysis," and "substantial evidence supported a fair argument that
the amendments may have a significant impact on the environment." (Id. at p. 404.)
The appellate court determined:
"In essence, the amendments eliminated the requirement that the County
give substantial weight to and even implement the standards provided in an
affected city's general plan. [¶]
. . . Under the new amendments, where a conflict between city
and county standards exist, the County has granted itself discretion to
override city standards in making decisions concerning land within that city's
sphere of influence." (City of
Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398 at pp.
407-408.) The appellate court concluded:
"[T]he initial threshold study is inadequate because it fails to provide
sufficient evidence or analysis of the potential environmental effects of the
amendments. 'The agency should not be
allowed to hide behind its own failure to gather relevant data.' Although the amendments essentially indicate
a movement away from a city's standards and a movement toward county's exercise
of greater discretion, the County does not provide evidence to show how such a
shift in policy would have little or no effect on the environment." (Id. at p. 408, fns. omitted.)
The initial study in this case, while extensive and
thorough in most respects, does not reflect that the City ever considered or
assessed the effect of the revisions on future off-leash dog use. This situation is in keeping with respondents'
staunch position that unleashed dog use was merely part of the existing
environmental baseline. As indicated,
they were correct only as to the existing levels of use but not as to any
increases in such use that may be engendered by the revisions. Consequently, we are compelled to conclude
the City failed to proceed in "a manner required by law." (§ 21168.5.)
"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.
(Pub. Resources Code, §§ 21168.5, 21005, subd. (a); County of
Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at p.
946; Environmental Planning & Information Council v. County of El Dorado
(1982) 131 Cal.App.3d 350, 355 [182 Cal.Rptr. 317].)" (Save our Peninsula Committee v. Monterey
County Board of Supervisors, supra, 87 Cal.App.4th at p. 118.) Since we find the City failed to consider the
whole of the project in its initial study, we turn to the question of
prejudice. (See § 21005, subd. (b)
["no presumption that error is prejudicial"].)
Respondents maintain that, even if the initial study
was deficient, it would be improper "to decertify the City's environmental
determination" given the administrative record. Citing several cases, respondents suggest
that a comprehensive administrative record may "cure" a defective
initial study. They argue that the City
had "sufficient information at the time of its Plan Update adoption to
determine that it could appropriately, and legally, accept the Initial Study as
adequate and adopt the subject Negative Declaration."
