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MARIA MEJIA, Plaintiff and Appellant, v. COURT OF APPEAL, SECOND APPELLATE
DISTRICT, DIVISION THREE, B174453 APPEAL from a judgment of the COUNSEL Maria
Mejia, in pro. per., for Plaintiff and Appellant. Rockard J.
Delgadillo, City Attorney, Susan D. Pfann and Jack L. Brown, Law Offices
of L. Douglas Brown and L. Douglas Brown for Real Party in Interest and
Respondent. OPINION CROSKEY, J. Maria
Mejia challenges the approval by the City of FACTUAL 1. Application
for a Tentative Tract Map and Project Approval California
Home applied to the city in June 1999 for approval of a tentative tract map to
subdivide 17 acres of land along The city’s
advisory agency conducted a public hearing on the application, and in December
1999 approved the tentative tract for development of 28 single-family homes
subject to conditions, and approved a mitigated negative declaration. A group of homeowners appealed the decision
to the city planning commission. The
city planning commission reduced the approved number of homes to 23 and revised
the conditions. The Planning and Land Use
Management Committee affirmed the decision by the planning commission. The city council approved the project in June
2000 and adopted a mitigated negative declaration.[i] 2. Set
Aside of the Project Approval Mejia filed
a petition for writ of mandate in the superior court challenging the project
approval under CEQA. The court granted
the petition in July 2001 and set aside the project approval. The judgment stated that the court granted
the petition because the city “failed to give proper notice of the City’s
intent to adopt a Mitigated Negative Declaration,” and ordered the city to
“proceed with a properly noticed hearing” on the application for a tentative
tract map. 3. Further
Proceedings and Project Approval The city
planning department prepared an initial study and proposed mitigated negative
declaration in September 2001. The
initial study determined that the project would have several potentially
significant environmental impacts, but found that the impacts could be
mitigated. The advisory agency conducted
a public hearing on the application in March 2002. Several neighborhood residents expressed
concerns and opposition in writing, and some did so orally at the hearing. The advisory agency concluded at the end of
the hearing that the planning department should reconsider the potential
environmental impacts, including “height, construction hours, loss of wildlife,
speeding on Wheatland, problems with picking up trash and going along
Wheatland . . . drainage, grading,” that California Homes
should provide an updated tree report, and that the city department of transportation
should “take another look at the traffic generation from the 23-lot
development.” The
planning department prepared a new initial study and proposed mitigated
negative declaration in May 2002. The
planning department prepared another initial study and proposed mitigated
negative declaration in September 2002 reflecting a reduction in the number of
homes from 23 to 21. The initial study
determined that the project would have several potentially significant environmental
impacts, but found that the impacts could be mitigated. The planning department gave public notice of
its intent to adopt a mitigated negative declaration, stating that it would
receive comments on the proposal for 30 days, until Several
residents, including Mejia, appealed the decision to the planning
commission. The planning commission
conducted a public hearing in December 2002 and approved the tentative tract
and mitigated negative declaration. The
Planning and Land Use Management Committee conducted a public hearing on two
days in February 2003 and approved the tentative tract and mitigated negative
declaration with ten additional conditions.
The city council approved the tentative tract in February 2003 and
adopted the mitigated negative declaration. 4. Trial
Court Proceedings Mejia filed
a petition for writ of mandate in the superior court challenging the project
approval under CEQA and on other grounds.
The city prepared an administrative record. Mejia requested judicial notice of numerous
documents not included in the administrative record. She made several arguments in support of the
petition, including the argument that the mitigated negative declaration was
improper because the project may have significant impacts on wildlife and
traffic despite the mitigation. After a
hearing on the merits, the court issued a minute order granting judicial notice
of two documents and denying the petition.
The court entered a judgment denying the petition in February 2004. CONTENTIONS Mejia
contends (1) the project may have significant, unmitigated impacts on animal
wildlife, traffic, planning and land use, and cumulative impacts, so a
mitigated negative declaration was improper; (2) a mitigated negative
declaration was improper because California Home agreed to mitigation measures
after the public release of a proposed mitigated negative declaration, rather
than before; (3) the city failed to notify the California Department of Fish and
Game of its intention to adopt a mitigated negative declaration, as required;
(4) the city failed to make all pertinent documents available for review during
the public comment period; (5) the city’s planning department failed to
consider some public comments; (6) the project is inconsistent with the
community plan; (7) the tentative tract map fails to disclose private
easements, as required by the Los Angeles Municipal Code; and (8) the
administrative record prepared by the city in connection with this litigation
is incomplete. DISCUSSION 1. CEQA
Requirements “CEQA is a
comprehensive scheme designed to provide long-term protection to the
environment. [Citation.] In enacting CEQA, the Legislature declared
its intention that all public agencies responsible for regulating activities
affecting the environment give prime consideration to preventing environmental
damage when carrying out their duties.
[Citations.] CEQA is to be
interpreted ‘to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.’ [Citation.]”
(Mountain Lion Foundation v. Fish
& Game Com. (1997) 16 Cal.4th 105, 112.) An “We have
repeatedly recognized that the A negative
declaration is a written statement that briefly explains why a project will not
have a significant environmental impact and therefore will not require an “
‘Significant effect on the environment’ means a substantial, or potentially
substantial, adverse change in the environment.” (Pub. Resources Code, § 21068.) The Guidelines define “significant effect on
the environment” as “a substantial, or potentially substantial, adverse change
in any of the physical conditions within the area affected by the project,
including land, air, water, minerals, flora, fauna, ambient noise, and objects
of historic or aesthetic significance.
An economic or social change by itself shall not be considered a
significant effect on the environment. A
social or economic change related to a physical change may be considered in
determining whether the physical change is significant.”[iii] (Guidelines, § 15382.) A project “ ‘may’ ” have a significant effect
on the environment if there is a “ ‘reasonable probability’ ” that the project
will have a significant environmental impact.
(No Oil, Inc. v. City of
Los Angeles (1974) 13 Cal.3d 68, 83, fn. 16.) “The determination of whether a project may
have a significant effect on the environment calls for careful judgment on the
part of the public agency involved, based to the extent possible on scientific
and factual data. An ironclad definition
of significant effect is not always possible because the significance of an
activity may vary with the setting. For
example, an activity which may not be significant in an urban area may be
significant in a rural area.”
(Guidelines, § 15064, subd. (b).) “Substantial
evidence” under CEQA “includes fact, a reasonable assumption predicated upon
fact, or expert opinion supported by fact.”
(Pub. Resources Code, § 21080, subd. (e)(1).) “Substantial evidence is not argument,
speculation, unsubstantiated opinion or narrative evidence that is clearly inaccurate
or erroneous, or evidence of social or economic impacts that do not contribute
to, or are not caused by, physical impacts on the environment.” ( These legal
standards reflect a preference for requiring an “Application
of the ‘fair argument’ test is a question of law for our independent
review. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus
(1996) 42 Cal.App.4th 608, 617 [49 Cal.Rptr.2d 494]; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas
(1994) 29 Cal.App.4th 1597, 1602 [35 Cal.Rptr.2d 470].) We review the trial court’s findings and
conclusions de novo (Arviv Enterprises,
Inc. v. South Valley Area Planning Com., supra, 101 Cal.App.4th at p. 1346 [125 Cal.Rptr.2d 140]), and do
not defer to the agency’s determination (Sierra
Club v. County of Sonoma, supra,
6 Cal.App.4th at p. 1318 [8 Cal.Rptr.2d 473]), except on ‘legitimate, disputed
issues of credibility’ (Quail Botanical
Gardens Foundation, Inc. v. City of Encinitas, supra, at p. 1603 [35 Cal.Rptr.2d 470]; Leonoff v. Monterey County Bd. of Supervisors (1990)
222 Cal.App.3d 1337, 1349 [272 Cal.Rptr. 372]).” (Bowman
v. City of Berkeley, supra,
122 Cal.App.4th at pp. 580-581.)
“Under this standard, deference to the agency’s determination is not
appropriate and its decision not to require an 2. The
Administrative Record Is Incomplete The
petitioner in a CEQA proceeding may file a request for the public agency to
“prepare the record of proceedings relating to the subject of the action or
proceeding.” (Pub. Resources Code,
§ 21167.6, subd. (a).) The public
agency must prepare and certify the record of proceedings within 60 days after
service of a request. ( Public
Resources Code section 21167.6, subdivision (e), states, “The record of
proceedings shall include, but is not limited to, all of the following items: “(1) All
project application materials. “(2) All
staff reports and related documents prepared by the respondent public agency
with respect to its compliance with the substantive and procedural requirements
of this division and with respect to the action on the project. “(3) All
staff reports and related documents prepared by the respondent public agency
and written testimony or documents submitted by any person relevant to any
findings or statement of overriding considerations adopted by the respondent
agency pursuant to this division. “(4) Any
transcript or minutes of the proceedings at which the decisionmaking body of
the respondent public agency heard testimony on, or considered any
environmental document on, the project, and any transcript or minutes of
proceedings before any advisory body to the respondent public agency that were
presented to the decisionmaking body prior to action on the environmental
documents or on the project. “(5) All
notices issued by the respondent public agency to comply with this division or
with any other law governing the processing and approval of the project. “(6) All
written comments received in response to, or in connection with, environmental
documents prepared for the project, including responses to the notice of
preparation. “(7) All
written evidence or correspondence submitted to, or transferred from, the
respondent public agency with respect to compliance with this division or with
respect to the project. “(8) Any
proposed decisions or findings submitted to the decisionmaking body of the
respondent public agency by its staff, or the project proponent, project
opponents, or other persons. “(9) The
documentation of the final public agency decision, including the final
environmental impact report, mitigated negative declaration, or negative
declaration, and all documents, in addition to those referenced in paragraph
(3), cited or relied on in the findings or in a statement of overriding
considerations adopted pursuant to this division. “(10) Any
other written materials relevant to the respondent public agency’s compliance
with this division or to its decision on the merits of the project, including
the initial study, any drafts of any environmental document, or portions
thereof, that have been released for public review, and copies of studies or
other documents relied upon in any environmental document prepared for the
project and either made available to the public during the public review period
or included in the respondent public agency’s files on the project, and all
internal agency communications, including staff notes and memoranda related to
the project or to compliance with this division. “(11) The
full written record before any inferior administrative decisionmaking body
whose decision was appealed to a superior administrative decisionmaking body prior
to the filing of litigation.” The
“project” referenced in Public Resources Code section 21167,
subdivision (e), includes not only the final version of the project
approved by the public agency, but also prior versions of the project
constituting substantially the same overall activity. ( The
earliest documents chronologically in the administrative record prepared by the
city are a tentative decision dated The
administrative record prepared by the city is incomplete because it excludes
documents pertaining to the project that antedate the judgment in the prior
proceeding, including project application materials, staff reports,
correspondence, environmental studies, and other documents listed in Public
Resources Code section 21167.6, subdivision (e), pertaining to prior
versions of substantially the same project.
We cannot accurately describe the documents missing from the
administrative record because most of those documents are not included in the
appellate record. Some of the missing
documents were the subject of Mejia’s request for judicial notice in the
superior court. The superior court
apparently construed the request as a motion to supplement the administrative
record and granted the motion as to only two documents. We conclude
that the court should have granted the motion as to other documents as
well. For purposes of our review, we
need address only the project application submitted in June 1999 (see Pub.
Resources Code, § 21167.6, subd. (e)(1)), a biotic assessment dated
December 1989, and the advisory agency’s approval in June 1990 of a prior
project on the same site.[iv] The biotic assessment was prepared in
connection with the project approved in June 1990. Both that prior project and the project
proposed by California Home in June 1999 involved the development of
28 single‑family homes, and the application submitted by California
Home in June 1999 stated that the proposed project was the “same project” as
the one approved in June 1990 but never completed. These documents show that the project
approved in June 1990 was a prior version of the project approved in February
2003 and that the projects were substantially the same for purposes of Public
Resources Code section 21167.6, subdivision (e). We therefore conclude that the biotic
assessment is a mandatory part of the record of proceedings under items (3) and
(7) of subdivision (e). Specifically,
the biotic assessment is a document submitted to the city relevant to its
finding that there will be no impact on animal wildlife (item (3)) and is
written evidence submitted to the city concerning compliance with CEQA with
respect to the project (item (7)). We reject
the argument by California Home that Mejia cannot challenge the adequacy of the
administrative record on appeal because she failed to file a noticed motion to
supplement the administrative record pursuant to rule 9.24(f) of the Local
Rules of the Los Angeles Superior Court.[v] Mejia’s request for judicial notice was the practical
equivalent of such a motion. Mejia filed
and served the request together with her opening memorandum of points and
authorities in support of the petition several weeks before the hearing on the
petition, California Home and the city filed a joint objection to the request
more than two weeks before the hearing, and California Home and the city were
in no way prejudiced by Mejia’s failure to properly label her motion. 3. A
Fair Argument, Based on Substantial Evidence, Can Be Made The biotic
assessment prepared in December 1989 described the property as “relatively rich
in animal life. There were a number of
bird species observed that are wintering in the area (flocks of waxwings,
yellow-rumped warblers, white-crowned sparrows, and robins). In addition, a red-tailed hawk was seen
roosting in the tall trees on the top of the small hill on the property, and
barn owl signs (pellets) were quite common on the northern part of the parcel. This northern area also appears to offer a
minor movement corridor to the carnivores of the area . . . . ” It stated further, “It is likely that a
number of other species use the property.
Weather conditions and time of year influence the activity, presence,
and visibility of vertebrate species.
A late spring/early summer study would not only record residents on
the property, but bird species that only nest in the area and reptile/amphibian
species active on the surface. . . . [¶]
No threatened or endangered species of animals were observed on the parcel and,
given the location and the small size of the parcel, none are expected to use
the property for any significant amount of their yearly needs. . . . [¶] One should expect that any urbanization on
the site will have negative impacts on most animal
numbers . . . . The small mammal movement
corridor on the northern edge of the property would be eliminated.” The biotic
assessment included a list of animal species observed on the property or
expected to be present. The list
included two bird species currently identified by the Department of Fish and
Game as species of special concern: Cooper’s hawk and loggerhead shrike.[vi] The biotic assessment also stated that the
Pacific kangaroo rat was expected to be present on the property, although it
also stated that the “high incidence of kangaroo rats” found in barn owl
pellets indicated that “the barn owls must be hunting these prey items off the
property, but close to their roosting trees.”[vii] The initial
study prepared in September 2002 stated that the property “contains
approximately 340 trees, mostly ornamental, non-protected species.” The initial study stated that the project
would have no impact on animal wildlife and that the cumulative impact on animal
wildlife would be less than significant.
In response to each question on the initial study checklist concerning
animal wildlife, apart from cumulative impacts, the “No Impact” box was
checked.[viii] The questions included whether the project
would “[h]ave a substantial adverse effect . . . on any species identified as a
candidate, sensitive, or special status species,” “interfere substantially with
the movement of any native resident or migratory fish or wildlife species or
with established native resident or migratory wildlife corridors,” or “have the
potential to degrade the quality of the environment, substantially reduce the
habitat of fish or wildlife species, cause a fish or wildlife population to
drop below self-sustaining levels, threaten to eliminate a plant or animal
community, reduce the number or restrict the range of a rare or endangered
plant or animal . . . .”[ix] The
explanations provided in the initial study for the “No Impact” responses
stated: “The site is in close proximity to the Several
residents stated in administrative hearings or written comments that they had
observed animal wildlife on the property site and expressed concerns that the
project would adversely impact animal wildlife.
One resident stated that he had observed a family of golden eagles nesting
in a tree on the site. The Department of
Fish and Game has designated the golden eagle a species of special concern.[x] Other residents referred to golden eagles,
owls, hawks, crows, geese, egrets, California quail, and other resident or
migratory birds, cottontail rabbits, coyotes, snakes, lizards, and other
animals on the property. Mejia noted
that the December 1989 biotic assessment had identified several animal species
on the property and stated, “A current study should be conducted to determine whether
these are candidates, sensitive, or special status species.” Residents emphasized the rural character of
the area and stated that some of the terrain surrounding the site is covered
with vegetation supporting a wildlife corridor. The
administrative record ordinarily is very limited when there is only an initial
study and no The
mitigation measures set forth in the mitigated negative declaration as
conditions of project approval were not designed to mitigate significant
impacts on animal wildlife because the city did not acknowledge any potentially
significant impact on animal wildlife.[xi] The two conditions modified by the advisory
agency and the ten conditions added by the Planning and Land Use Committee
similarly were not designed to mitigate impacts on animal wildlife. We conclude
that the evidence supports a fair argument that the project may have a
significant effect on animal wildlife.
In light of the evidence discussed above and absent a current biotic
assessment, the conclusions and explanations provided in the initial study do
not preclude the reasonable possibility that birds, including species of
special concern and others, may roost or nest on the property, that small
mammals may use the property as a movement corridor, and that development of
the site and elimination of the corridor may have a significant impact on
animal wildlife. The proximity of larger
wilderness areas does not necessarily compel the conclusion that the site is
insignificant to animal wildlife.
Contrary to the determinations of the initial study, we conclude that
there is a fair argument that the project, in the words of the initial study
checklist, may “[h]ave a substantial adverse effect . . . on [] species
identified as a candidate, sensitive, or special status species” or “interfere
substantially with the movement of any native resident or migratory fish or
wildlife species or with established native resident or migratory wildlife
corridors.” Our
conclusion that a fair argument can be made that the project may have a
significant impact on animal wildlife also compels the conclusion that the city
was required to consult with the Department of Fish and Game, a trustee agency (Guidelines,
§ 15386), before conducting an initial study, and subsequently was
required to notify the department of the city’s intention to adopt a mitigated
negative declaration. (Pub. Resources
Code, § 21080.3, subd. (a); Guidelines, §§ 15063, subd. (g),
15072, subd. (a); Gentry v. City of 4. A
Fair Argument, Based on Substantial Evidence, Can Be Made Several
residents expressed concerns that the project would exacerbate traffic problems
on A
representative of the city Department of Transportation at an advisory agency
public hearing in March 2002 acknowledged that Wheatland Avenue is a collector
street designed to accommodate traffic from other streets, stating: “So we
don’t have a policy that studies a collector street being impacted, because a
collector street is designed to handle additional traffic, and all the local
streets are supposed to funnel into the collector street, and the collector
street is supposed to take them to the major street, which is Sunland. In this case, it’s actually what you
have. You have the private streets from
the development going to Wheatland Avenue, which is a collector, and the
collector street goes down to Sunland, which is the major. So it does follow what it’s designed to be. “Now, there
are other issues with Wheatland that maybe can be resolved, but it may take
some winding or something, but many mentioned that it was too narrow or
something. Maybe something can be done
with that respect, but that has to be looked further into. But as far as significant impact caused by
traffic, there’s no significant impact caused by the number of trips generated
by this particular development.” The
advisory agency stated at the conclusion of the hearing that it would ask the
Department of Transportation “to take another look at the traffic generation
from the 23-lot development.” After the
planning department prepared a new initial study and proposed mitigated
negative declaration in September 2002 reducing the number of homes from 23 to
21, the advisory agency approved the project apparently without further study
of potential traffic impacts. The initial
study checklist prepared in September 2002 stated that there would be a less
than significant impact in response to the question whether the project would
“[c]ause an increase in traffic which is substantial in relation to the
existing traffic load and capacity of the street system (i.e., result in a
substantial increase in either the number of vehicle trips, the volume to ratio
capacity on roads, or congestion at intersections)?” The explanation stated, “The Los Angeles
Department of Transportation has established traffic impact thresholds based on
the type and intensity of land use. The
threshold for single-family home developments is 40 dwelling units or more; the
project involves 23 [sic],
low-density, single-family housing units on large lots. Therefore, the project does not meet the
threshold criteria for traffic impacts.
Furthermore, the project will include street improvements and review by
the Department of Transportation and the Bureau of Engineering.” Similarly, the advisory agency at a public
hearing before the planning commission in December 2002 explained, “The
threshold for a traffic study in this case would be 40 dwelling units. This project does not meet that threshold.” A threshold
of significance may be useful to determine whether an environmental impact
normally should be considered significant.
(Guidelines, § 15064.7, subd. (a).)[xii] A threshold of significance is not conclusive,
however, and does not relieve a public agency of the duty to consider the
evidence under the fair argument standard.
(Protect the Historic Amador
Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108-1109; Communities for a Better Environment v.
California Resources Agency (2002) 103 Cal.App.4th 98, 110-114; see
Guidelines, § 15064, subd. (b).[xiii]) A public agency cannot apply a threshold of
significance or regulatory standard “in a way that forecloses the consideration
of any other substantial evidence showing there may be a significant
effect.” (Communities for a Better Environment, supra, at p. 114.) We
conclude that the city improperly relied on a threshold of significance despite
substantial evidence supporting a fair argument that the project may have a
significant impact on traffic on 5. Other
Contentions In light of
our determination that the evidence supports a fair argument that the project
may have significant impacts on animal wildlife and traffic, an DISPOSITION The
judgment is reversed with directions to the superior court to grant the
petition and issue a peremptory writ of mandate ordering the city to vacate its
approval of the project and mitigated negative declaration and to cause an [i] The
principal documents reflecting these events should have been but were not
included in the administrative record in this proceeding, as discussed post.
(Pub. Resources Code, § 21167.6, subd. (e).) [ii] All
references to Guidelines are to the CEQA Guidelines (Cal. Code Regs.,
Tit. 14, § 15000 et seq.) developed by the Office of Planning and Research
and adopted by the California Resources Agency.
(Pub. Resources Code, §§ 21083, 21087.)
“[C]ourts should afford great weight to the Guidelines except when a
provision is clearly unauthorized or erroneous under CEQA.” (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 391, fn. 2 (Laurel Heights I).) [iii] “
‘Environment’ means 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. The area involved shall be
the area in which significant effects would occur either directly or indirectly
as a result of the project. The
‘environment’ includes both natural and man-made conditions.” (Guidelines, § 15360; see Pub. Resources
Code, § 21060.5.) [iv] The
biotic assessment was included in the administrative record for the prior
proceeding initiated by Mejia, but the city did not include the document in the
administrative record for the present proceeding. We take judicial notice of the index of the
administrative record in the prior proceeding, as requested by the Mejia in the
trial court. [v] “Once
the administrative record has been filed, any disputes about its accuracy or
scope should be resolved by appropriate notice[d] motion. For example, if the agency has prepared the
administrative record, petitioners may contend that it omits important
documents or that it contains inappropriate documents; if the petitioners have
prepared the record, the agency may have similar contentions. A motion to supplement the certified
administrative record with additional documents and/or to exclude certain
documents from the record may be noticed by any party and should normally be
filed concurrently with the filing of petitioner’s opening memorandum of points
and authorities in support of the writ.
Opposition and reply memoranda on the motion should normally be filed
with the opposition and [reply] memoranda, respectively, regarding the
writ. The motion should normally be
calendared for hearing concurrently with the hearing on the writ.” (Super. Ct. L.A. County, Local Rules, rule
9.24(f).) [vi] The
Department of Fish and Game maintains lists of species of special concern on
its website, stating, “ ‘Species of Special Concern’ (SSC) status applies
to animals not listed under the federal Endangered Species Act or the California
Endangered Species Act, but which nonetheless 1) are declining at a rate that
could result in listing, or 2) historically occurred in low numbers and known
threats to their persistence currently exist.”
(<http://www.dfg.ca.gov/hcpb/species/ssc/ssc.shtml>.) [vii] Unlike
several other varieties of kangaroo rat, the Pacific kangaroo rat is not
designated as endangered, threatened, or a species of special concern. [viii] The
responses in the initial study of May 2002 were identical to those in the
initial study of September 2002. The
initial study of September 2001, however, stated that the impacts on animal
wildlife would be “Less Than Significant,” rather than “No Impact,” and that
the cumulative impact would be “Potentially Significant Unless Mitigation Incorporated,”
rather the “Less Than Significant.”
Thus, in response to the concerns expressed regarding the project after
the initial study of September 2001, the city revised the initial study by
downgrading the stated impacts on animal wildlife, but apparently did not
substantially revise the project other than by reducing the number of homes
from 23 to 21. [ix] The
last of these questions is a mandatory finding of significance under
section 15065, subdivision (a)(1), of the Guidelines. Contrary to the respondents’ argument, an
impact need not satisfy the requirements of a mandatory finding of significance
to be considered a significant impact. [x] See
footnote 6, ante. [xi] Some
of the conditions nonetheless may mitigate impacts on animal wildlife to some
degree, such as the condition requiring the replacement of all “desirable
trees” on the property. That condition
does not expressly require the replacement of trees significant to native or
migratory birds, however. Since the
initial study concludes that the project will have no impact on animal wildlife
even without mitigation, the “desirability” of trees to be replaced presumably
may be determined by some measure other than the benefit to animal wildlife. [xii] “Each
public agency is encouraged to develop and publish thresholds of significance
that the agency uses in the determination of the significance of environmental
effects. A threshold of significance is
an identifiable quantitative, qualitative or performance level of a particular
environmental effect, non‑compliance with which means the effect will normally be determined to be significant
by the agency and compliance with which means the effect normally will be determined to be less than significant.” (Guidelines, § 15064.7, subd. (a), italics
added.) [xiii] “The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data. An ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area.” (Guidelines, § 15064, subd. (b).) 
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