Opinion
D078151
01-14-2022
DAVISSON ENTERPRISES, INC., Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents, CR OTAY CANYON RANCH ASSOCIATES, LLC, Real Party in Interest and Respondent.
Varco & Rose nbaum Environmental Law Group, Suzanne R. Varco and Grant R. Olsson for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2019-00046002-CU-TT-CTL Richard S. Whitney, Judge. Affirmed.
Varco & Rose nbaum Environmental Law Group, Suzanne R. Varco and Grant R. Olsson for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendants and Respondents.
AARON, J.
Sheppard, Mullin, Richter & Hampton, John E. Ponder, Whitney A. Hodges and Karin Dougan Vogel for Real Party in Interest and Respondent CR Otay Canyon Ranch Associates, LLC.
I.
INTRODUCTION
Petitioner Davisson Enterprises, Inc. (Davisson) filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (Petition/Complaint) against the City of San Diego and the City Council of San Diego (jointly "City"), challenging the City's decision to approve the Otay Mesa Central Village Lumina Project No. 555609 (Lumina Project), as proposed by Real Party in Interest CR Otay Canyon Ranch Associates, LLC (CR Otay).
Davisson contends that the City's approval violates the California Environmental Quality Act (CEQA), as well as state planning and zoning laws because the Lumina Project is inconsistent with both the City's Central Village Specific Plan (CVSP) and the City's Climate Action Plan (CAP). According to Davisson, the CVSP, which is a specific plan for a neighborhood covered by the Otay Mesa Community Plan (OMCP) and the 2014 Otay Mesa Community Plan Update (2014 OMCPU), requires the installation of a gravity-based sewer system in the CVSP area. Davisson's complaint is that the City is allowing CR Otay to install sewer main lines at a depth of 20 feet below ground, rather than at the 31-foot depth that CR Otay's sewer study concluded would be necessary to guarantee that other development projects in the CVSP area will be able utilize a gravity-based sewer system. With a gravity-based system, developers of other projects in the area could avoid having to build pump stations to assist in ensuring proper sewage flow, regardless of how those developers' projects are designed. Davisson maintains that a 2014 environmental impact report (2014 EIR) assumed the installation of a gravity-based sewer system throughout the entire CVSP area, and contends that the City's approval of the Lumina Project's 20-foot deep sewer line placement violates the planning documents and necessitates a full, new analysis under CEQA and the issuance of a supplemental EIR rather than merely an addendum to the 2014 EIR, as the City approved. Davisson further maintains that even if it was proper for the City to issue an addendum rather than a supplemental EIR, the addendum that the City issued is insufficient under CEQA as a matter of law.
The trial court rejected Davisson's contentions and entered judgment in favor of the City and CR Otay. Davisson appeals, setting forth the same general arguments on appeal as it presented in the trial court.
We conclude that Davisson's contentions are without merit. We therefore affirm the trial court's judgment in favor of the City.
II.
BACKGROUND
A. Background planning documents and the relevant EIR
The City of San Diego General Plan identifies 55 Community Plans that provide community-scale policy recommendations for specific geographic areas of the City; these recommendations aim to provide a citywide vision for growth and as well as a policy framework for implementing that vision. The San Diego City Council (City Council) first adopted OMCP in 1981. In 2014, the City Council adopted an update to the OMCP-the 2014 OMCPU-"to provide for broad land use themes that seek to establish a bi-national center; provide for economic diversification; enhance and sustain Otay Mesa's industrial capacity; encourage and support international trade; promote the establishment of balanced neighborhoods that integrate a mix of land uses; and identify infrastructure needs." Concurrent with the adoption of the 2014 OMCPU, the City Council also certified a program level EIR.
As it relates to the provision of sewer infrastructure, the OMCPU states that "[b]ecause Otay Mesa has large vacant areas with development potential, the opportunity exists to provide adequate public facilities and services at the time of development." It explains that the "Existing sewer facilities . . . include the East Otay Mesa collection system, the Otay Valley Trunk Sewer system, and the Otay Mesa Trunk Sewer within the Metropolitan Sewerage System (METRO)." The only "polic[y] and recommendation[]" (capitalization omitted) included in the OMCPU regarding wastewater is that the City" [c]ontinue to coordinate with the development community to provide reasonable and adequate facilities in conjunction with future development."
The EIR that was certified in connection with the 2014 OMCPU (the 2014 EIR) determined that increased growth resulting from the OMCPU would increase the sewer flows over the flows that had been forecast as necessary in the original 1981 OMCP, and that there would therefore be a need for additional sewer infrastructure. The additional sewer infrastructure for the build out of the OMCPU included: (1) increasing emergency storage at Pump Station 23T; (2) upsizing the gravity main along Otay Mesa Road; and (3) upsizing the gravity main to the existing San Ysidro Trunk Sewer system. The 2014 EIR determined that because the additional sewer improvements identified in the OMCPU would occur within existing utility line easements and facilities, the OMCPU and resultant buildout of the wastewater infrastructure for the anticipated development would not cause significant new impacts to the environment. In addition, the 2014 EIR requires the City Director of the Public Utilities Department to ensure, through review of project applications, that future projects implemented in accordance with the OMCPU are sited to avoid conflicts with existing public utilities and are designed in compliance with the City's Sewer Design Guidelines.
The 2014 EIR incorporates by reference a number of other environmental review documents, including the 2005 Otay Mesa Trunk Sewer Final EIR. The Otay Mesa Trunk Sewer Final EIR reflects environmental review related to "the construction and/or expansion of. . . sewer infrastructure," including "[s]ewer [p]ump stations" in the Otay Mesa planning area, as well as "[s]ewer [pipelines (gravity and force mains) and manholes." This document discusses mitigation measures to be undertaken with respect to pump station construction and operation in order to mitigate potential environmental impacts to less than significant levels. The 2014 EIR also discusses the Otay Mesa Trunk Sewer Master Plan and Alignment Study, adopted by the City Council in 2004, and a Refinement and Phasing Report prepared in 2009. The Refinement and Phasing Report "recommended several sewer system upgrades in the Otay Mesa sewer basin to resolve capacity constraints," and stated that these "identified sewer improvements would enhance pumping and conveyance capabilities from the City's Otay Mesa sewer pump station 23T to the existing San Ysidro Trunk Sewer.
The 2014 EIR identifies that "[additional wastewater system improvements beyond what have been identified in master planning documents would be necessitated by CPU implementation." It further determined that" [t]he need for these improvements would not result in significant impacts, because the 2004 OMTS Sewer Master Plan and 2009 Refinement Report previously identified these improvements as required in future phases to accommodate buildout wastewater generation from the area. The three additional improvements identified above would occur within existing utility line easements and facilities and would not result in significant impacts to the environment. Therefore, impacts associated with wastewater systems would be considered less than significant at the program-level."
Our review of the OMCPU and the 2014 EIR has not identified any indication that these documents require that additional buildout of sewer infrastructure in the CVSP area utilize a gravity-based system. In fact, planning documents anticipate the continued use of public pump stations at various locations and analyzed and mitigated for pump station components, as well as force mains.
B. The adoption of the Central Village Specific Plan
Together, the Central Village Specific Plan, the OMCPU, and City's General Plan set forth the planning documents guiding development of the area in which the challenged project is located. When we refer to these documents in combination, we will refer to them as the Plans.
The OMCPU established five geographic "Districts" within the Otay Mesa Community Plan area, one of which is identified as the "Central District." Within that "Central District" is an area described "as having a village center at the western end of the mesa (i.e., the 'Central Village' area) that is predominately residential in nature with core areas of mixed uses and public spaces sited along Airway Road." In 2017, a Specific Plan was created and adopted by the City regarding the future build-out of what is referred to as the Central Village (i.e., the CVSP). The CVSP includes a discussion of various necessary infrastructure elements, including water and sewer systems. In introducing the infrastructure elements, the CVSP states:
We provide a more in-depth examination of additional relevant language from the CVSP in part III.A, post.
"Infrastructure improvements necessary within the CENTRAL VILLAGE include water, sewer, and storm water drainage systems. These improvements plans ensure that these systems operate efficiently and provide adequate service levels to meet future demand. The infrastructure plans included in this subsection are conceptual and show how water, sewer, and drainage systems will be incorporated into the CENTRAL VILLAGE area and provide adequate levels of service. Therefore, the specifications provided in this subsection may be subject to change based on the outcome of final design and engineering performed at the individual tract map/implementation stage."
The CVSP also provides the contextual setting within which its infrastructure elements, including sewer infrastructure, are to be developed:
"The City of San Diego is the sewer collection system provider for the Specific Plan area. As of 2017, sewer flows generated within the Specific Plan area were conveyed to a pump station located near Cactus Road and Siempre Viva Road. From the pump station, sewer flows are conveyed to a gravity sewer in Otay Mesa Road that connects to the City's Otay Valley Trunk Sewer."
C. The Lumina Project
As proposed to the City, the Lumina Project provides for up to 1, 868 dwelling units, 62, 525 square feet of commercial space, 6.3.acres of school and/or recreational use space, 6.6 acres of parks and 16.2 acres of public streets. The Lumina Project proposes the installation of a sewer system with the capacity to service the Lumina Project site, as well as "future surrounding development." The proposed sewer system for the Lumina Project contains sewer lines of sufficient length and with sufficient capacity to accommodate the sewer infrastructure needs of the entire CVSP area for purposes of foreseeable development. The Lumina Project proposal ultimately included a sewer main line that would be installed at a depth of 20-feet.
A City Staff Report noted that" [t]his project does not propose the construction of any structures," but instead, involves the "grading to create the lots, installation of internal access roads, sewer and drainage systems, landscape and brush management, and improvements to Cactus Road and Airway Road."
A City Staff Report indicates that typical sewer depth is seven to ten feet. The City's Sewer Design Guide states that" [s]ewer pipes shall be installed at 7 to 9 feet wherever possible," and that "[m]ains with a depth of 15 feet or greater shall require a Design Deviation Request. . . submitted for approval by the Senior Civil Engineer."
CR Otay commissioned a Sewer Study, as required by the CVSP, to analyze the Lumina Project's sewer system needs, as well as the needs of adjacent properties. The Sewer Study proposed two alternative sewer system depths-a 20-foot depth and a 31-foot depth, and concluded that the 20-foot depth was the preferred option. The Sewer Study concluded that such a system would be "consistent with the City Design Guide for public sewer system design." The Sewer Study noted: "The remaining CVSP developments were evaluated for their feasibility to connect to the preferred [20-foot deep] sewer system. It was determined that there may be a need for a public pump station in the southwestern portion of the CVSP. However, future grading to the west may mitigate the need, as this evaluation was based on the preliminary grades developed in the CVSP."
In considering the 31-foot depth option, the Sewer Study noted that a "benefit of the deep sewer option is it may eliminate the need for a public or private sewer pump stations [sic] for some of the properties to the southwest including Davisson .... However, this cannot be determined until preliminary Tentative Map grades are established to the west."
At a Planning Commission hearing, Davisson raised concerns about the proposed sewer design and the possibility that sewer pump stations would have to be installed on neighboring sites in the future as a result of the Lumina Project's proposal to install its sewer system at a depth of 20 feet. In response to these concerns, a City Staff Report explained that a "typical sewer depth is 7-10 feet," but because of "elevational variations between the project and surrounding sites, the proposed sewer would be 20 feet deep." The Staff Report further notes that the proposed sewer installation "allows the provision of a gravity sewer to the extent practical while balancing installation, maintenance, cost and safety issues." The Staff Report also states that although the Sewer Study also included an option under which the sewer system would be installed at 31 feet in depth, "this [option] is not recommended by staff due to maintenance, operational, cost and safety issues."
On March 20, 2019, the Otay Mesa Community Planning Group voted 12 to 0, with three members abstaining, to recommend approval of the Lumina Project, with no conditions. On June 13, 2019, the City of San Diego Planning Commission voted 4 to 0, with three Commissioners recusing, to recommend City Council approval of the Project.
The City Council considered the Lumina Project proposal at a hearing on July 29, 2019. The City Council heard from a number of individuals involved in the planning of the Lumina Project, as well as City staff, who voiced support for the Lumina Project. One of the Lumina Project's design consultants who was "the engineer of work" for the Lumina Project explained that a sewer system design that would be placed at more than 30 feet deep "exceed[s] the [C]ity's maximum recommended depth per the [C]ity sewer design manual," "will increase maintenance and operational cost to the [C]ity," will "increase health and safety concerns," and will require the placement of a redundant sewer system to be built on top of the deep sewer system to serve the Lumina Project development area. Representatives from Davisson spoke out against the Lumina Project's sewer system proposal, arguing that the CVSP required CR Otay to install its sewer system at a depth of 31 feet in order to allow for a gravity-based sewer system for the entire Central Village area as it was built out.
The City Council unanimously approved the Lumina Project with its proposed 20-foot-deep sewer system.
In approving the Lumina Project, the City Council also approved an addendum to the 2014 EIR. The addendum addressed the Lumina Project's wastewater infrastructure plans and determined that the project would create "no substantial change from [the 2014 EIR's] previous analysis." (Bolding and some capitalization omitted.) It explained:
"The City of San Diego would provide sanitary sewer service for the Project site via development of a new on-site sewer collection system and connections to the Otay Mesa Trunk Sewer system. As discussed in the OMCPU EIR, The Project proposes construction of sewer lines on-site that would connect to existing and proposed off-site facilities. The Project's Tentative Map and Sewer Study (Technical Appendix J) evaluate development of the on-site sewer system along Street C between Village Way and Cactus Road at a maximum depth of 20 feet in order to be consistent with the City Design Guide for public sewer system design. In addition, the Project's Sewer Study (Technical Appendix J) evaluates two sewer alternatives that would result in development of the sewer system along Street C between Village Way and Cactus Road at depths inconsistent with the City Design Guide for public sewer system design. . . . The installation of sewer lines on-site as proposed by the Project would result in physical impacts to the surface and subsurface of infrastructure alignments. These impacts are considered to be part of the Project's construction phase and are evaluated throughout this document accordingly. Furthermore, all proposed off-site sewer facilities would be constructed within existing R[ight] 0[f] W[ay] and no additional environmental impacts would occur. The construction of wastewater lines as necessary to serve the proposed Project would not result in any significant physical effects on the environment that are not already identified and disclosed as part of this document or by the OMCPU EIR. As such, impacts would be less than significant."
D. Proceedings in the trial court
On August 30, 2019, Davisson filed a petition for writ of mandate and a complaint for declaratory and injunctive relief, seeking relief from the City's July 29, 2019 decision to approve the Lumina Project. Davisson alleged that the City violated state and local laws in approving the Lumina Project, and contended that the decision must be overturned. Specifically, Davisson alleged that the Lumina Project represented a substantial change from the requirements of the CVSP, and that the changes would result in either new or more severe environmental impacts than those assessed in the 2014 EIR, such that the City was required to prepare a Supplemental EIR. Davisson further alleged that the Lumina Project was inconsistent with land use plans that had been approved by the City because it would result in a sewer system that did not rely solely on gravity for its function, and instead, would require the installation of sewer pump stations for future developments.
On July 29, 2020, the trial court issued a ruling denying Davisson's petition in full. The trial court concluded that Davisson's arguments regarding CEQA involved factual questions, and therefore, that the City's issuance of an addendum in connection with its approval of the Lumina Project was to "be reviewed under the substantial evidence standard." The trial court concluded that substantial evidence supported the City's conclusions with respect to the lack of need for a Supplemental EIR, and its decision to adopt an addendum to the EIR instead. With respect to Davisson's arguments regarding the Lumina Project's consistency with relevant approved plans, the court applied an abuse of discretion standard and concluded that the City had not abused its discretion in determining that the Lumina Project was consistent with those plans.
The trial court entered judgment in favor of the City on August 7, 2020. Davisson filed a timely notice of appeal on September 18, 2020.
III.
DISCUSSION
A. The City did not abuse its discretion in concluding that the Lumina Project is consistent with applicable land use plans
1. Relevant law and standards
Every city must adopt a comprehensive, long-term general plan for the physical development of the city. (Gov. Code, § 65300; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1195 (Beck Development).) The general plan is a constitution for future development, located at the top of the hierarchy of local government law regulating land use. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 772-773.) After adoption of a general plan, a city may adopt a specific plan for the systemic implementation of the general plan for all or part of the city. (Gov. Code, § 65450; Beck Development, at p. 1196.) A specific plan contains standards and criteria by which development will proceed and a program of implementation measures. (Gov. Code, §65451, subds. (a)(3), (4); Chandis Securities Co. v. City of Dana Point (1996) 52 Cal.App.4th 475, 481; Beck Development, at p. 1196.)
Projects and tentative maps must be consistent with the adopted specific plan. (Gov. Code, § 65455.) We review a city's decision regarding a project's consistency with a general or specific plan for an abuse of discretion. Although there has been some disagreement among the Courts of Appeal as to whether a finding of consistency is a quasi-legislative or quasi-judicial action, the standard of review is not materially different under either view. (See San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th498, 514 [determination of consistency reviewed for abuse of discretion by administrative mandamus]; Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th777, 782 [decisions regarding consistency are quasi-legislative acts reviewed by ordinary mandamus, i.e., "whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair"].)
A project maybe determined to be consistent with an agency's general plan, as well as with any specific plans adopted to further the objectives of the general plan, "' "if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment."' [Citation.] A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a [project] must be 'compatible with' the objectives, policies, general land uses and programs specified in the general plan. [Citation.]" (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336 (Families Unafraid).)
In reviewing an agency's decision with respect to a proposed project for consistency with the agency's own plan, a reviewing court "accord[s] great deference to the agency's determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those polices when applying them in its adjudicatory capacity. [Citation.] Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan's policies when applying them, and it has broad discretion to construe its policies in light of the plan's purposes. [Citations.] A reviewing court's role 'is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies. [Citation.]'" (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142 (Save Our Peninsula); see Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1510-1511 ["[G]eneral and specific plans attempt to balance a range of competing interests. It follows that it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan. An agency, therefore, has discretion to approve a plan even though if the plan is not consistent with all of a specific plan's policies"].) "Once a general plan is in place, it is the province of elected city officials to examine the specifics of a proposed project to determine whether it would be 'in harmony' with the policies stated in the plan. It is, emphatically, not the role of the courts to micromanage these development decisions." (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719 (Sequoyah Hills).)
A petitioner carries the burden "to show why, based on all of the evidence in the record, the [consistency] determination was unreasonable." (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 26 (San Diego Citizenry).)
2. The City did not abuse its discretion in determining that the Lumina Project is consistent with the CVSP
Davisson argues that in approving the Lumina Project, the City has not "follow[ed] the regulations of its own CVSP," and that this failure amounts to an abuse of discretion. Davisson's principal contention is that the CVSP requires that a gravity-based sewer main line service the entire Central Village development area. Davisson bases this contention on a sentence in the CVSP, and argues that "[The CVSP's] standards are clear: sewer flows are to be conveyed via gravity main and 'shall be installed at adequate depths to serve all planning areas within the Central Village.'" (Italics omitted.) In making this argument, Davisson fails to acknowledge the context in which this sentence appears in the CVSP, and as a result, overstates what the CVSP requires with respect to a gravity-based sewer system. Although a gravity-based system is clearly a conceptual goal of the CVSP, the CVSP cannot reasonably be read as mandating a gravity-based system.
a. Relevant language from the CVSP
Because various portions of the CVSP are relevant to our review of the City's determination that the Lumina Project is consistent with the CVSP with respect to the proposed sewer system depth, we set forth a number of these portions in this section for ease of reference.
Section 1 of the CVSP provides an introduction to the development area, and includes descriptions of the 2017 status of the land and infrastructure systems located in the Central Village Area. With respect to the sewer system infrastructure, the CVSP explains: "The City of San Diego is the sewer collection system provider for the Specific Plan area. As of 2017, sewer flows generated within the Specific Plan area were conveyed to a pump station located near Cactus Road and Siempre Viva Road. From the pump station, sewer flows are conveyed to a gravity sewer in Otay Mesa Road that connects to the City's Otay Valley Trunk Sewer."
Section 2 of the CVSP sets forth the" Central Village development concept and its five main components: land use, mobility, parks and open space, urban design; and infrastructure systems." (Some capitalization omitted.) Section 2.1.2 provides definitions of the terms used in the CVSP. That section includes the following relevant language:
"Throughout this Specific Plan, 'Design Standards' and design 'Policies' are identified. Design Standards are mandatory requirements for all future implementing developments. Policies are recommendations which offer guidance for the design for future development within the Specific Plan, and are provided to encourage creative and flexible design solutions during implementation." (Italics added.)
Throughout the CVSP, both "design standards" and "policies" are identified as such, and are numbered to correspond with the section in which they are found.
The portion of the CVSP relating to the sewer system is found in section 2.6, titled "Infrastructure Element." The paragraph immediately below this heading states:
"Infrastructure improvements necessary within the CENTRAL VILLAGE include water, sewer, and storm water drainage systems. These improvements plans ensure that these systems operate efficiently and provide adequate service levels to meet future demand. The infrastructure plans included in this subsection are conceptual and show how water, sewer, and drainage systems will be incorporated into the CENTRAL VILLAGE area and provide adequate levels of service. Therefore, the specifications provided in this subsection may be subject to change based on the outcome of final design and engineering performed at the individual tract map/implementation stage." (Italics added.)
Section 2.6.1.2 is titled "Sewer," and is followed by a lengthy paragraph that contains the language on which Davisson relies in asserting that the CVSP requires a gravity-based sewer system. (We have italicized that language in the quotation below.)
"The CENTRAL VILLAGE sewer plan is depicted on Figure 2.6-2, Conceptual Sewer Plan. The CENTRAL VILLAGE utilizes a sewer system to convey wastewater from each planning area within the village toward wastewater treatment facilities. Sewer flows generated in the portions of the site located west of Cactus Road, as well as portions of Planning Areas 10 and 13, would be conveyed to a gravity main located underneath Cactus Road extending from Siempre Viva Road to just north of Street C. Flows from Cactus Road are conveyed to Pump Station 23T located near the intersection of Cactus and Siempre Viva Roads, and are pumped to the Otay Valley Trunk Sewer in Otay Mesa Road. Flows from Planning Areas 11 and 12, as well as portions of Planning Areas 10 and 13, would be conveyed by an existing sewer line extending through proposed Street D, along Continental Road, and within Airway Road east of Continental Road. These flows also ultimately would discharge to the Otay Valley Trunk Sewer in Otay Mesa Road. The on-site sewer mains are located within major internal roadways, and will be sized to adequately convey peak flows generated by the Village. The sewer mains shall be installed at adequate depths to serve all planning areas within the CENTRAL VILLAGE. Prior to approval of a Tentative Map or any other discretionary entitlement approval, a sewer study will be required to analyze its sewer basin and the contribution of others in the basin. The sewer study shall comply with the Public Utilities Department's Sewer Design Guide, latest edition. In cases where an implementing development project is required to install sewer lines at a greater depth and/or at an increased size than is required to service the development for the purpose of accommodating gravity sewer service to another property, the Reimbursement Financing for Water and Sewer Facilities approved in the Otay Mesa Public Facilities Financing Plan (City Council Resolution#R-308811) maybe implemented." (Second italics added.)
None of this language is identified as either a "Design Standard" or a "Policy." Rather, in the section that follows the above section, section 2.6.1.3, the CVSP sets forth four "Water and Sewer Design Standards":
"2.6.1.3 Water and Sewer Design Standards
"The following design standards apply to water and sewer facilities within CENTRAL VILLAGE.
"Design Standard 2.6-1 Water service for Planning Areas 1, 2, and a portion of Planning Area 15 is anticipated to be accommodated by a revision of the Otay Water District's service boundaries, or through a service agreement between the City of San Diego and the Otay Water District.
"Design Standard 2.6-2 All water and sewer facilities shall be designed per the requirements of the City of San Diego. Facility sizes and locations presented in this Specific Plan are conceptual and may be larger or smaller than indicated on Figure 2.6-1, Conceptual Water Plan, and Figure 2.6-2, Conceptual Sewer Plan. Additionally, the exact siting of these facilities will be determined through technical studies associated with the processing of future development permits to ensure future development within the CENTRAL VILLAGE complies with the policies and the intent of the CENTRAL VILLAGE Specific Plan.
"Design Standard 2.6-3 All water and sewer improvements needed to serve each development phase within the CENTRAL VILLAGE shall be in place and fully operational prior to the issuance of occupancy permits. "Design Standard 2.6-4 Water and sewer facilities shall be installed in accordance with the requirements and specifications of the City of San Diego and the State of California, Department of Public Health." (Italics added.)
b. Analysis
Davisson repeatedly asserts throughout its briefing that the Plans, and in particular, the CVSP, require the installation of a gravity-based sewer system. Davisson's contentions in this regard are not supported by the language of the CVSP or by other relevant planning documents.
The full context of the CVSP's treatment of the infrastructure elements in the Central Village area demonstrates that this Specific Plan does not mandate a particular type of sewer installation, but instead, sets out an overarching preference that a gravity-based system be installed. The CVSP sets forth a broad conceptual framework for the planning and implementation of infrastructure elements for the types of systems necessary to allow for development for a variety of uses. But with respect to specific project proposals, the CVSP leaves the details of such systems to be ascertained until after the relevant technical and engineering analyses are completed. The CVSP specifically introduces its discussion of the infrastructure improvements, including the sewer improvements, by stating:
"The infrastructure plans included in this subsection are conceptual and show how water, sewer, and drainage systems will be incorporated into the CENTRAL VILLAGE area and provide adequate levels of service. Therefore, the specifications provided in this subsection may be subject to change based on the outcome of final design and engineering performed at the individual tract map /implementation stage." (Italics added.)
This language clearly informs developers that the "specifications" that are set out in the CVSP regarding the infrastructure systems are subject to change.
Further, while "Design Standards are mandatory requirements for all future implementing developments," none of the other provisions of the CVSP are deemed to be mandatory. Of the four "Design Standards" set out with respect to the water and sewer infrastructure plans, none mentions a gravity-based sewer system. Nor is there a separately identified "Policy" favoring installation of a gravity-based sewer system. Rather, the sewer-related "Design Standards" make clear that the CVSP allows for flexibility in the placement of the sewer lines, in order to account for the technical and engineering concerns that are inherent in the installation of these infrastructure elements. Design Standard 2.6-2 makes clear that further "technical studies" conducted in connection with future permits will determine the "exact siting" of all water and sewer facilities in the CVSP area.
Policies, which are identified and numbered in the CVSP as well, "are recommendations which offer guidance for the design for future development within the Specific Plan, and are provided to encourage creative and flexible design solutions during implementation."
In contending that the CVSP requires a gravity-based sewer design, Davisson relies on the following the introductory language regarding the sewer infrastructure element: "The sewer mains shall be installed at adequate depths to serve all planning areas within the CENTRAL VILLAGE." Given the location and context of the sentence, as well as repeated statements in the infrastructure portion of the CVSP to the effect that it is "conceptual" in nature, together with the fact that any proposals regarding infrastructure plans are subject to modification after technical analyses are completed, it is clear that this sentence reflects a "conceptual" preference regarding the type of sewer system to be installed in the CVSP area, rather than a statement indicating that a gravity-based system must be installed in the CVSP area, regardless of what technological, engineering, safety, or other environmental concerns such a system might raise. Davisson contends that because this sentence in the CVSP uses the word "shall" when it states that" [t]he sewer mains shall be installed at adequate depths to serve all planning areas within the CENTRAL VILLAGE," the CVSP should be understood to make "adequate depths to serve all planning areas" a mandatory requirement for every project seeking approval. However, given that this language is not included as a "Design Standard" or even a "Policy" in the CVSP, the interpretation of the CVSP that Davisson urges places too much weight on this single sentence.
Not only is the sentence on which Davisson relies not a mandatory "Design Standard," but the CVSP actually mandates that any sewer system "be designed per the requirements of the City of San Diego." And, as the administrative record demonstrates, the City's Sewer Design Guide creates a presumption that sewer main lines will not be placed at a depth greater than 20 feet. The Sewer Design Guide provides the following standards in section 2.2.1.5, titled "Depth of Mains":
"b. Sewer pipes shall be designed to achieve a cover [i.e., the vertical distance from finished grade top of the sewer main] of 7 to 9 feet wherever possible.
"c. Mains with a depth of 15 feet or greater shall require a Design Deviation Request. . . submitted for approval by the Senior Civil Engineer.
"d. In addition, mains deeper than 20 feet, or mains 15 feet deep with laterals, shall require special approval from the Public Utilities Department, Wastewater Collection Division Senior Civil Engineer.
"e. Design Deviations for depth will only be approved in exceptional cases and when adequate justification is provided."
Thus, the requirements of the City presume that 20 feet will be the deepest installation placement for sewer main lines for all projects in the City in the absence of a request for an exception, which is to be granted only "in exceptional cases"; the 20-foot depth is precisely the sewer main line depth proposed by the Lumina Project. Although there may be exceptions for the approval of main lines deeper than 20 feet, the presumption is for a depth of no greater than 20 feet. The approval of a project that proposes a depth of 20 feet comports with the requirements of the City of San Diego and is thus consistent with the sewer-related "Design Standards" in the CVSP.
In contrast to the presumption created by the City's Sewer Design Guide that sewers be placed no more than 20 feet below the surface, the record discloses no presumption in the Sewer Design Guide that sewer systems be entirely gravity-based.
Davisson also suggests that a reimbursement provision in the same introductory paragraph provides support for its interpretation of the phrase "sewer mains shall be installed at adequate depths to serve all planning areas" as a mandate that a gravity-based system be installed in the CVSP area. We disagree. The relevant provision states, "In cases where an implementing development project is required to install sewer lines at a greater depth and/or at an increased size than is required to service the development for the purpose of accommodating gravity sewer service to another property, the Reimbursement Financing for Water and Sewer Facilities approved in the Otay Mesa Public Facilities Financing Plan (City Council Resolution #R-308811) maybe implemented." (Italics added.) This provision envisions the possibility that the City may require a developer of a project in the CVSP area to install sewer lines "at a greater depth and/or at an increased size than is required to service" that developer's project so that those sewer lines may be used to accommodate gravity service for other projects in the area. However, this provision does not mandate that the developer of a project in the CVSP area install a gravity system in every instance. Rather, it merely states that if the City does require increased depth or size of a sewer installation by one developer in order to accommodate a gravity-based sewer system to be connected with a separate project, the developer that is required to do more than would otherwise be necessary to serve that developer's own project may be reimbursed for these accommodations for the other developer's project. This mechanism does not, itself, require installation of deeper sewer lines so that all projects in the area can be serviced by a gravity-based sewer system.
We interpret the language of the CVSP to indicate a preference for the use of a gravity-based sewer system. However, we disagree with Davisson's assertion that the CVSP requires that every project approved include the installation of sewer main lines at depths that ensure that only gravity-based sewer lines will be used throughout the CVSP area.
Davisson also contends that the City abused its discretion in concluding that the Lumina Project's proposed 20-foot deep sewer system is consistent with the relevant planning documents, arguing that the proposed system is inconsistent with those documents because it will necessitate the use of pump stations. This contention overstates the import of evidence in the record. Davisson states repeatedly that the approved 20-foot deep sewer main in the Lumina Project will "necessitate" or "require" the use of pump stations on other parcels, asserting that "[i]t is undisputed that the [Lumina] Project, because of its shallow sewer design, will require the installation of pump stations for future developments." However, our review of the administrative record shows that it is not possible, without more information from other CVSP area developers as to the specifics of their development plans, to ascertain at this point in time whether any pump stations will be necessary. The administrative record demonstrates that while the approval of a 20-foot main line depth for the Lumina Project may make it more likely that one or more pump stations will ultimately be necessary on neighboring parcels, as of now, it is possible that gravity-based systems may still be utilized; the need for pump stations cannot be definitively ascertained until proposed future projects provide their own sewer studies. For example, the Lumina Project Sewer Study states: "The site planning for the remaining CVSP has not advanced in parallel with Lumina. Accordingly, it is possible that Davisson may be able to design a grading scheme to minimize or eliminate future pumping." Elsewhere, the document states: "Additional coordination between the City and Developers of the remaining CVSP areas, including Davisson, will be required to determine the feasibility of adjusting the final sewer system depths, as future grading options may eliminate the need for a deep sewer." In addition, even Davisson's own expert, who spoke at a planning commission meeting, could not say that pump stations will be necessary. In response to the question "whether or not you guys [i.e., Davisson] think absolutely [pumping stations will be required] or potentially because that's probably gonna matter," the Davisson technical expert responded, "And, you know, we're -we're in the early stages of development. Nobody's done the final design, nobody's done, you know, the grading studies. We really don't know. But these are pretty - they're subject to pump stations because we don't know where those grades are gonna be, but they're far enough away from the main that's shallow that it's gonna be hard to get that gravity feed to work at a grade that meets the standards and gets the velocity. [.. . So] the ones in red are - or pink, rather, they1'reprobably gonna need something." (Italics added.) Thus, even Davisson's own expert acknowledged that until there are more definitive plans for the other properties in the CVSP area, he could not state with certainty that additional pump stations would be necessary.
Davisson's use of the descriptive phrase "shallow" with respect to the proposed 20-foot deep system is somewhat misleading, given the record in this case. According to the evidence in the administrative record, the proposed 20-foot deep system will be 11 to 13 feet deeper than the typical sewer system, and is the greatest depth allowable pursuant to the City's Sewer Design Guide without special approval.
In addition, the portions of the administrative record to which Davisson cites in support of its assertion that it is "undisputed" that pump stations will be required as a result of the 20-foot sewer depth approved for the Lumina Project do not support Davisson's assertion that the need for future pump stations is in fact "undisputed." For example, Davisson cites to the Lumina Project Sewer Study in support of this assertion. But that document indicates merely that the 20-foot deep sewer main in the Lumina Project may require some use of pump stations. Similarly, the page to which Davisson cites from the "Report to the Planning Commission" regarding the Lumina Project states, "As areas within the CVSP are proposed for development, they will be required to provide a sewer study in accordance with the Public Utilities Sewer Design Guide to specifically identify how proposed future development will provide sewer service. Such sewer service will be dependent upon the respective elevations of future projects, which may necessitate the use of pump or lift stations." (Italics added.) This thought is repeated in a letter to Davisson from the City's Development Services Department. In that letter, a deputy director stated the following:
For instance, the document states: "A shallower sewer system. . . may necessitate a public and/or private pump station to serve the southwestern portions of the remaining CVSP." (Italics added.) It also states, "It was determined that there may be a need for a public pump station in the southwestern portion of the CVSP. However, future grading to the west may mitigate the need, as this evaluation was based on the preliminary grades developed in the CVSP." (Italics added.)
"Staff have reviewed the [Lumina Project] and believe it to be consistent with the adopted Central Village Specific Plan ('CVSP'). The [Lumina Project] proposed sewer contains supplemental size, capacity and length to accommodate service for the entire CVSP area. As areas within the [CVSP] are proposed for development, [each development project] will be required to provide a sewer study in accordance with the Public Utilities Sewer Design Guide to specifically identify how the proposed development will provide sewer service. Such sewer service will be dependent upon the respective elevations of the proposed project, which may necessitate the use of pump or lift stations as authorized by the City Engineer. Such determination cannot be made until sewer studies are prepared and submitted for review by the Public Utilities Department." (Italics added.)
In addition, Davisson cites to comments made by its own representatives asserting the need for pump stations. However, these citations do not support Davisson's premise that it is undisputed that pump stations will be required. The only citation Davisson points to that suggests that the City does not dispute that the 20-foot depth in the Lumina Project will require the installation of pump stations in other development projects, such as Davisson's property, is a comment made by a City staffer at a City Planning Commission meeting. In discussing the dispute between CR Otay and Davisson, the staffer indicated that Davisson's "biggest argument[ ] is gravity" "because, you know, at the shallower option, um, it would necessitate the use of pumps, which now you're getting away from that gravity." However, in the context of the entire Planning Commission meeting, as well as the rest of the administrative record, it is not clear that the staff member was stating that the need for pump stations for other projects in the CVSP area was a certainty. In sum, the record does not support Davisson's premise that it is "undisputed" that pump stations will be required as a result of the City's approval of the Lumina Project's 20-foot sewer depth plan. Rather, the record supports the City's position that it is impossible to know whether pump stations will be required as a result of the Lumina Project's 20-foot sewer depth, and there remains a possibility that a fully gravity-based system may still be available for future developments.
Davisson also cites to an e-mail from a City staffer to other City staffers in which the author appears to be relaying the concerns that Davisson had raised regarding the depth of the sewer system that was being discussed with respect to the Lumina Project, stating: "There are two options, one is to have a shallower sewer main with maximum depth of 20 feet in one or two places but this option cannot serve the Davisson [property] since they will be forced to pump some or most of their flows. They have already voiced their objection stating that to the extent possible we should accommodate them so that they can drain via gravity." It is not clear from the record what the purpose of the email was, or whether the author was purporting to state an assertion of fact, a personal opinion, an expert opinion, or a mere summary of one of the major issues being raised with respect to the Lumina Project's sewer system proposal. It does not follow from this ambiguous email that it is "undisputed" that pump stations will be necessary.
Davisson engages in other overstatements of the administrative record elsewhere in its briefing. For example, Davisson asserts that" [t]he GHG emissions from pump stations are considerable," in arguing that the City failed to adequately address significant environmental concerns that are reasonably foreseeable from its approval of the 20-foot sewer depth for the Lumina Project. However, Davisson's sole citation to the record to support this assertion is to a page of the "San Diego County Water Authority Final 2015 Urban Water Management Plan"-a document that does not discuss sewer systems or waste water systems, but instead, discusses the City's clean water supply system. The document does not address whether pump stations utilized in a clean water system are comparable to those utilized in a sewer system, and there is no other aspect of the record that indicates that pump stations for clean water purposes are the same or sufficiently similar to those used for sewage to render the comparison helpful. Further, although Davisson does not explain what portion of this page of the document it is referring to as support for its assertion, the only portion that could conceivably support Davisson's assertion is the following statement from the document: "The Water Authority's Twin Oaks Valley Water Treatment Plant (WTP) was responsible for 43% of its emissions in 2009 (2, 513 MT C02e). Pump stations were the next largest source of emissions, accounting for 17% of total emissions (980 MT C02e)." This statement provides no context, and fails to provide information on how many clean water pump stations are used in the City. As a result, one cannot ascertain from this statement any information as to how much GHG is emitted from a single pump station. It does not necessarily follow from this statement that "GHG emissions from pump stations are considerable."
Given that the CVSP does not require a gravity-based system and that even if it did, the record does not unequivocally establish that the approval of a 20-foot sewer main in the Lumina Project will necessitate pump stations in future developments, the City's determination that the Lumina Project is consistent with the CVSP did not amount to an abuse of discretion. It is clear that the approval of a 20-foot-deep sewer main line"' "further[s] the objectives and policies of the general plan [and specific plans adopted to further the objectives of the general plan]" and does "not obstruct their attainment."'" (Families Unafraid, supra, 62 Cal.App.4that p. 1336.) As we have explained, a 20-foot sewer depth is compatible with the City's generally applicable sewer depth standards, and the CVSP specifically indicates that a design that meets the City's sewer requirements is itself compatible with the CVSP's standards. Again, in reviewing the City's decision with respect to the Lumina Project's consistency with the City's own planning documents, we "accord great deference to the [City's] determination," particularly because, as the City's decision in this matter demonstrates, the "policies in a . . . plan reflect a range of competing interests" that a "governmental agency must be allowed to weigh and balance" in "applying them." (Save Our Peninsula, supra, 87 Cal.App.4that p. 142.) Here, the administrative record shows that the City had to weigh a variety of concerns in deciding whether to approve the 20-foot sewer depth proposed in the Lumina Project-most notably, how, and the degree to which, a greater depth for the proposed sewer main lines would hinder the City's ability to effectively maintain those lines once installed, and would increase the potential dangerousness of having to repair and maintain such a system. The "Otay Mesa Central Village Lumina Development On-Site Sewer Study" (Lumina Project Sewer Study) noted that "[d]eep sewers" such as the 31-foot depth that would be required to ensure that all development in the area would have gravity-based sewer flow, "require special design because of the depth and operations and maintenance considerations for access at manholes." Part of that design would also require the installation of an additional "parallel shallow collector sewer" in order to "avoid deep laterals." Additional discussion provided in the Lumina Project Sewer Study, as well as in written and oral testimony, supported the City's determination that a 31-foot deep sewer main line was not feasible due to maintenance and safety concerns. However, the sewer project, as proposed, was "consistent with the adopted Central Village Specific Plan ('CVSP')" because "[t]he [Lumina Project's] proposed sewer contains supplemental size, capacity and length to accommodate service for the entire CVSP area." (Italics added.)
It is clear that the City had discretion, under the express terms of the CVSP, to determine the most reasonable siting for the sewer main lines to be installed by the Lumina Project, including the depth aspect for these locations. Given this record, no abuse of discretion has been shown with respect to the City's decision to approve the Lumina Project's proposed 20-foot deep sewer main line system.
Davisson does not argue that the Lumina Project's proposed 20-foot deep sewer system is inconsistent with higher level plans that cover the area at issue. For example, Davisson has not specifically identified any language in the OMCPU or the City's General Plan that demonstrates a conflict with the Lumina Project's proposed sewer system. We take this as an implicit concession that the Lumina Project's proposal is consistent with these land use planning documents.
3. The City did not abuse its discretion in concluding that the Lumina Project is consistent with the Climate Action Plan
Davisson contends that the Lumina Project is inconsistent with the City's Climate Action Plan (CAP), another specific land use planning document, and that the City abused its discretion in concluding otherwise.
After the 2014 EIR was certified, the City adopted the Climate Action Plan (CAP) The CAP "outlines the actions that the City will undertake to achieve its proportional share of State GHG emission reductions," and sets out a methodology to provide for "a consistent, localized, and comprehensive approach for the assessment of GHG impacts." The City's CAP targets a 15 percent reduction from 2010 GHG baseline levels by the year 2020 and an 80 percent reduction from 2010 GHG baseline levels by the year 2050. Although the OMCPU contains policies that are consistent with the strategies of local and state plans to reduce GHG emissions, the 2014 EIR determined that future development projects may not meet the City's reduction goals associated with achieving the reductions required by legislation. The 2014 EIR's "Results of Impact Analysis" therefore determined that "the level of potential impacts associated with plan conflict [with City reduction goals] would be potentially significant."
In order to ensure that all future developments comply with the CAP, the City adopted the Consistency Checklist. The Consistency Checklist "is part of the CAP and contains measures that are to be implemented on a project-by-project basis to ensure [the City achieves] the specified emissions targets." Projects that have been determined to have met the standards in the Consistency Checklist "would have less than significant cumulatively considerable GHG emissions."
In considering the Lumina Project, the City analyzed the project's consistency with the CAP by applying the Consistency Checklist. The City found that application of the Consistency Checklist demonstrated that "the [Lumina] Project is compliant with the CAP and does not conflict with the CAP." The City's analysis noted that the Lumina Project is "a discretionary Tentative Map," and "does not entail specific development." The data and responses contained in the Consistency Checklist completed for the Lumina Project provides evidentiary support for the City's determination that the Lumina Project satisfied the Consistency Checklist and that it therefore "would have less than significant cumulatively considerable GHG emissions." A City's determination that a project is consistent with the City's own land use plans, such as the CAP, is entitled to great deference, and Davisson must show that the City's determination is unreasonable. (San Diego Citizenry, supra, 219 Cal.App.4that p. 26; Sequoyah Hills, supra, 23 Cal.App.4that p. 719.) This record does not reveal that the City's determination that the Lumina Project is consistent with the CAP is unreasonable.
Davisson contends otherwise. In attacking the validity of the City's determination that the Lumina Project's proposed 20-foot deep sewer system should not have been deemed to be consistent with the CAP, Davisson does not challenge any of the information contained in the Consistency Checklist for the Lumina Project, nor does it assert that the Consistency Checklist is generally an invalid method for determining a project's compliance with the CAP. Rather, Davisson argues that the City's reliance on the Consistency Checklist "employ[s] circular reasoning" because the City "conclude[s] that the Project will have less than significant cumulatively considerable GHG emissions impacts because [the City] complied with the Checklist [citation], but the Checklist itself is filled out under the assumption that the [Lumina] Project is consistent with land use requirements." In other words, Davisson's contention is that the City's use of the Consistency Checklist under the "flawed" assumption that the Lumina Project's proposed sewer system is consistent with the relevant land use plans means that the Consistency Checklist could not address the potential GHG effects of pump stations that were not foreseen under the CVSP. However, as we have indicated above, it is Davisson whose argument rests on two faulty assumptions-i.e., the assumption that the applicable land use planning documents require a gravity-based sewer system and that none of the associated analyses have considered that pump stations may have to be used in the CVSP area, and the further assumption that additional pump stations will necessarily be required, regardless of the nature of future development. Neither of these assumptions is supported by the record. First, as we have previously explained, none of the relevant land use planning documents, including the CVSP, mandates a gravity-based system. Second, it is not certain that pump stations will have to be built on Davisson's property, and, to the extent that additional pump stations may be required, other CEQA compliance and mitigation measures may be taken. Given that Davisson's arguments rests on two faulty assumptions, we conclude that the City's reliance on the Consistency Checklist to determine compliance with the CAP is not "circular," and that the City's use of the Consistency Checklist with respect to the Lumina Project provides sufficient support for its conclusion that the Lumina Project is consistent with the CAP.
In addition, the 2014 EIR incorporates the Otay Mesa Trunk Sewer Final EIR, which specifically addresses the use and effect of pump stations and provides for the methods by which environmental impacts of pump stations can be mitigated.
B. The City's approval of the Lumina Project did not violate CEQA
Davisson's main contention in this proceeding is that the City violated CEQA in approving the Lumina Project. Specifically, Davisson asserts that the City abused its discretion in preparing an addendum to the 2014 EIR, rather than adopting a Supplemental EIR. Davisson also argues that the addendum that the City prepared is inadequate because, among other things, it "contains no discussion of the reasonably foreseeable impacts associated with the change in sewer infrastructure."
1. CEQA's Legal framework
"In CEQA, the Legislature sought to protect the environment by the establishment of administrative procedures drafted to '[e]nsure that the long-term protection of the environment shall be the guiding criterion in public decisions.'" (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74.)
Public Resources Code sections 21000 through 21177 codify CEQA's provisions. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 507, fn. 1.) Further statutory references are to the Public Resources Code. The regulations set forth in title 14 of the California Code of Regulations guide CEQA's application; these are often referred to as the CEQA Guidelines. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th310, 319, fn. 4.) "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5 (Vineyard Area Citizens).)
"Under CEQA, 'approval' of a project is 'the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.' [Citations.]" (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505-506.)" 'Project' 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, and that is" an activity subject to CEQA. (CEQA Guidelines, § 15378, subd. (a); see § 21065.) "The term 'project' refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term 'project' does not mean each separate governmental approval." (CEQA Guidelines, § 15378, subd. (c).)
Under CEQA, a public agency generally conducts an initial study to determine whether a project "may have a significant effect on the environment." (CEQA Guidelines, § 15063, subd. (a).) Usually, when an agency proposes a project, it must prepare an EIR if the project may have a significant effect on the environment. (§ 21080, subd. (a), 21100, subd. (a), 21151, subd. (a).) If the initial study shows that there is no substantial evidence that the project may have a significant effect on the environment, CEQA requires the agency to prepare a negative declaration. (CEQA Guidelines, § 15070, subd. (a).) "[I]f the project has potentially significant environmental effects but these effects will be reduced to insignificance by mitigation measures that the project's proponent has agreed to undertake, CEQA requires the . . . agency to prepare a mitigated negative declaration." (Mossv. County of Humboldt (2008) 162 Cal.App.4th 1041, 1048.)
"The purpose of the EIR is 'to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.' [Citation.]" (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944 (San Mateo Gardens).)" [An] EIR thus works to 'inform the public and its responsible officials of the environmental consequences of their decisions before they are made,' thereby protecting' "not only the environment but also informed self-government."' [Citations.]" (Id. at pp. 944-945, italics omitted.)
The Legislature encourages the tiering of EIRs whenever feasible. (§ 21093, subd. (b); CEQA Guidelines, §§ 15006, subds. (f), (m), 15152, subd. (b).) Tiering refers to the coverage of general matters and environmental effects in an overarching EIR, with the preparation of subsequent EIRs or negative declarations on issues specific to later activities. (§ 21068.5; CEQA Guidelines, §§ 15152, subd. (a), 15385, 15371.) Tieringis proper "when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports." (§ 21093, subd. (a); see also CEQA Guidelines, § 15385, subd. (b).) A program EIR, such as the 2014 EIR, uses tiering. (CEQA Guidelines, § 15152, subd. (h)(3); In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1170.)
Although CEQA sets a low threshold for requiring the preparation of an EIR in the first instance, after an initial EIR is certified, there is a statutory presumption against additional environmental review. (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th924, 935; § 21167.2.) Section 21166 prohibits agencies from requiring additional environmental review unless (1) substantial changes are proposed in the project that will require major revisions to the EIR; (2) substantial changes occur with respect to the circumstances under which the project is being undertaken that will require major revisions to the EIR; or (3) new information, which was not known and could not have been known when the EIR was certified, becomes available. (§ 21166; CEQA Guidelines, § 15162.) Section 21166 comes into play "precisely because in-depth review has already occurred." (Bowmanv. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073 (Bowman).) The question is whether circumstances "have changed enough to justify repeating a substantial portion of the process." (Ibid, italics altered.)
As relevant to our consideration of the issues raised in this appeal, CEQAs subsequent review provisions may apply when an agency modifies a project after it has certified an EIR or has adopted a negative or mitigated negative declaration. If one of the conditions described in section 21166 is present, the lead agency must prepare either a subsequent EIR or a supplemental EIR. (See CEQA Guidelines, § 15162, subd. (a)(1).) If major changes are required to make the previous EIR adequate, the agency must prepare a subsequent EIR. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1199-1200.) If only minor additions or changes are necessary to make the original EIR adequate, the agency may prepare a supplement to the EIR. (Id. at p. 1200; see also CEQA Guidelines, § 15163, subd. (a).) Thus, "[o]nce a project has been subject to environmental review and received approval, section 21166 and CEQA Guidelines section 15162 limit the circumstances under which a subsequent or supplemental EIR must be prepared." (SanMateo Gardens, supra, 1 Cal.5th at p. 949.) "[S]ection21166 and CEQA Guidelines section 15162 provide that an agency that proposes changes to a previously approved project must determine whether the changes are '[substantial' and 'will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.' (CEQA Guidelines, § 15162, subd. (a)(1).) If the proposed changes meet that standard, then a subsequent or supplemental EIR is required." (Id. at p. 950.)
However, "[w]hen there is a proposal to modify a project originally approved through EIR, no 'major revision' to the initial EIR is required if the initial EIR already adequately addresses any additional environmental effects that may be caused by the proposed modification." (SanMateo Gardens, supra, 1 Cal.5th at p. 958.) The CEQA Guidelines require a lead agency to "prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guidelines] [s]ection 15162 calling for preparation of a subsequent EIR have occurred." (CEQA Guidelines, § 15164, subd. (a).) The decision-making body of the agency must "consider the addendum with the final EIR . . . prior to making a decision on the project." (Guidelines, § 15164, subd. (d).) These subsequent review provisions are designed to ensure that an agency that proposes changes to a previously approved project" 'explore[s] environmental impacts not considered in the original environmental document.'" (San Mateo Gardens, supra, at p. 950.)
"The provisions of [CEQA Guidelines] sections 15162, 15163, and 15164 apply when the project being analyzed is a change to, or further approval for, a project for which an EIR or negative declaration was previously certified or adopted (e.g. a tentative subdivision, conditional use permit). Under case law, the fair argument standard[, which requires an EIR on any project that may have a significant effect on the environment, ] does not apply to determinations of significance pursuant to sections 15162, 15163, and 15164." (CEQA Guidelines, § 15064, subd. (f)(7).) Thus, where an agency determines that it may proceed under CEQA's subsequent review provisions and further determines that project changes will not require a subsequent EIR (or a supplemental EIR), a reviewing court determines whether both decisions are supported by substantial evidence. (San Mateo Gardens, supra, 1 Cal.5th at pp. 952-953.) This is a more deferential standard than the standard applied to reviewing an agency's decision with respect to a new project that has not previously received environmental review. (See San Mateo Gardens, supra, at p. 953.)
"The 'fair argument' test is derived from section 21151, which requires an EIR on any project which 'may have a significant effect on the environment.' That section mandates preparation of an EIR in the first instance 'whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.' [Citation.] If there is substantial evidence of such impact, contrary evidence is not adequate to support a decision to dispense with an EIR. [Citations.] Section 21151 creates a low threshold requirement for initial preparation of an EIR and reflects a preference for resolving doubts in favor of environmental review when the question is whether any such review is warranted. [Citations.]" (Sierra Club v. County of Sonoma (1992) 6Cal.App.4thl307, 1316-1317.)
In cases challenging an agency's issuance of an EIR, a reviewing court generally independently reviews the administrative record to determine whether the agency abused its discretion. (Ventura Foothill Neighbors v. County of'Ventura (2014) 232 Cal.App.4th 429, 434.) An abuse of discretion is shown if the agency has not proceeded in the manner required by law, or if the agency's determination is not supported by substantial evidence. (Ibid.)
In applying the substantial evidence test, a reviewing court must indulge all reasonable inferences from the evidence that would support the agency's finding and resolve all conflicts in the evidence in favor of the agency's decision. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) "[0]n factual questions, our task 'is not to weigh conflicting evidence and determine who has the better argument.' [Citation.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th412, 435.)
2. Davisson has not challenged the City's decision to proceed pursuant to CEQA's subsequent review provisions
Where there is an initial environmental document (such as the 2014 EIR), the court's first step is to determine "whether [the] initial environmental document remains relevant despite changed plans or circumstances." (SanMateo Gardens, supra, 1 Cal.5that pp. 952-953.) This is "a question for the agency to answer in the first instance, drawing on its particular expertise. [Citation.] A court's task on review is then to decide whether the agency's determination is supported by substantial evidence." (Id. at p. 953.)
The City determined that it could proceed under CEQA's subsequent review provisions because the 2014 EIR remains relevant with respect to the development proposed in the Lumina Project's plans. Davisson does not present any argument on appeal that the City's determination that it was appropriate to proceed pursuant to CEQA's subsequent review provisions is unsupported by substantial evidence. We conclude that Davisson has thus forfeited any claim that the City's decision to proceed under the subsequent review provisions is unsupported by substantial evidence; we therefore proceed under the presumption that substantial evidence supports the City's determination that the 2014 EIR remains relevant and that CEQA's subsequent review provisions therefore apply.
3. Substantial evidence supports the City's determination that neither a subsequent EIR nor a supplemental EIR was required, and that the prepared addendum is sufficient under CEQA
Where substantial evidence supports the agency's determination that an initial environmental document remains relevant, the reviewing court's "next - and critical- step is to determine whether the agency has properly determined how to comply with its obligations [under CEQA's subsequent review] provisions. In particular, where . . . the agency has determined that project changes will not require 'major revisions' to its initial environmental document, such that no subsequent or supplemental EIR is required, the reviewing court must then proceed to ask whether substantial evidence supports that determination." (San Mateo Gardens, supra, 1 Cal.5that p. 953.)" [I]f a project was originally approved by an EIR, we affirm the agency's determination whether a subsequent or supplemental EIR is [or is not] required when the determination is supported by substantial evidence, even if there is other evidence to the contrary." (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2017) 11 Cal.App.5th596, 607 (San Mateo GardensII).)
Davisson's argument with respect to the City's decision to prepare an addendum to the 2014 EIR instead of a supplemental EIR is two-fold. Davisson first argues that that the City abused its discretion in making the decision to prepare an addendum to the 2014 EIR because, Davisson maintains, a supplemental EIR was required. Davisson argues in the alternative that even if the City's decision to prepare an addendum was appropriate under CEQA, the addendum prepared by the City with respect to the Lumina Project is "inadequate."
a. The City did not abuse its discretion in concluding that a supplemental EIR was not required
With respect to Davisson's first contention, i.e., that the City's decision to prepare an addendum, rather than a supplemental EIR, was an abuse of discretion, we conclude that the record supports the City's decision.
Davisson acknowledges that in a situation in which "the prior CEQA document retains relevance to the proposed project, an addendum is appropriate unless there are substantial changes in the project or circumstances which require major revisions to the prior EIR or there is new information that was not and could not have been known at the time of the prior EIR." It argues, however, that" [f]urther CEQA analysis is required if a future action [e.g. installation of pump stations] will likely change the scope of the initial project, or its environmental effects."
" [I]if a project was originally approved by an EIR, we affirm the agency's determination whether a subsequent or supplemental EIR is required when the determination is supported by substantial evidence, even if there is other evidence to the contrary. [Citations.] [If] But once we have determined that the subsequent review provisions apply to a project approved through a negative declaration, our application of the standard of review changes and is less deferential to the agency. It is less deferential because a negative declaration requires a major revision-i.e., a subsequent EIR or mitigated negative declaration- whenever there is substantial evidence to support a fair argument that proposed changes 'might have a significant environmental impact not previously considered in connection with the project as originally approved.'" (San Mateo Gardens II, at p. 607.) Although some of the standards that Davisson sets out in its briefing with respect to our review of the City's decision-making under CEQA are correct, Davisson also relies on quotations and statements from San Mateo Gardens II, supra, 11 Cal.App.5th at page 607, to argue that the review for environmental impacts of proposed changes to a project "is less deferential to an agency's determination," and to suggest that" '[p]roposed changes might have a significant environmental impact when there is some competent evidence to suggest such an impact, even if other evidence suggests otherwise.'" These legal standards are not applicable in the circumstance presented in this case. San Mateo Gardens II involved an agency's decision to prepare an addendum after having previously issued a negative declaration, not an EIR. (See San Mateo Gardens II, supra, at pp. 606-607.) This distinction is significant, as is clear from the San Mateo Gardens II opinion, because the standards applicable when a project is approved after issuance of an EIR are different from those applicable when a project is approved via a negative declaration:
The Lumina Project is a project-level proposal for implementing the OMCPU, the "project" for which the 2014 EIR was prepared. In fact, various levels of environmental review of the Lumina Project and related infrastructure needs were previously performed and provided in the 2014 EIR as well as in subsequent addenda. In connection with its proposal, the Lumina Project undertook and provided a Sewer Study, which evaluated the sewer infrastructure buildout in the project's area. According to the Sewer Study, buildout of the Lumina Project was calculated "to demand an average of 0.52 mgd, which would be . . . below the assumptions for the Project site in the OMCPU [2014] EIR." The 2014 EIR assumed that additional improvements in this area "would occur within existing utility line easements and the facilities would not result in significant impacts to the environment." The Lumina Project's sewer improvements are to be situated within existing utility easements, in a manner consistent with the 2014 EIR's provisions, such that "no additional environmental impacts would occur" as a result of their placement. Further, although the "installation of sewer lines on-site as proposed by the Project would result in physical impacts to the surface and subsurface," "[t]hese impacts are considered to be part of the Project's construction phase" and were evaluated as construction effects. It is clear that project-level changes that are within the scope of the previously approved project do not require preparation of a subsequent or supplemental EIR. (See Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1318.)
In arguing that the Lumina Project required a supplemental EIR, Davisson relies in part on its assertion that the 2014 EIR assumes that all future sewer infrastructure installation would comprise gravity-based lines. However, Davisson cites to no portion of the 2014 EIR that states that it is assuming installation of only a gravity-based sewer system in the CVSP area. Davisson's only citations to the 2014 EIR in support of its claim that a gravity-based sewer system is assumed demonstrate instead that the current sewer system utilizes at least one major pump station, and that the 2014 EIR, itself, does not address the construction of additional pump stations in the future. Further, the 2014 EIR discusses the City's adoption of the Otay Mesa Trunk Sewer Master Plan and Alignment Study, and the subsequently prepared "Refinement and Phasing Report," which "recommended several sewer system upgrades in the Otay Mesa sewer basin to resolve capacity constraints in the near-term due to contracted capacity and to meet flows through year 2030." The 2014 EIR further states that" [p]er this report, the identified sewer improvements would enhance pumping and conveyance capabilities from the City's Otay Mesa sewer pump station 23T to the existing San Ysidro Trunk Sewer." (Italics added.) In addition, the 2014 EIR incorporates the Otay Mesa Trunk Sewer Final EIR, which specifically envisions "the construction and/or expansion of. . . sewer infrastructure, " including "[s]ewer [p]ump stations," as well as "[s]ewer [p]ipelines (gravity and force mins) and manholes." The document also discusses mitigation measures to be undertaken with respect to pump station construction and operation in order to mitigate potential environmental impacts to less than significant levels. For example, the Otay Mesa Trunk Sewer Final EIR Mitigation Monitoring and Reporting Program requires that "[a]ny pump station(s) constructed as part of Phase 2C [of the plan] shall be designed to incorporate energy efficient components such as soft start motors, high efficiency motors, energy-efficient interior, and exterior lighting and skylights in order to avoid the excessive use of fuel or energy."
Davisson also argues that the Lumina Project's 20-foot sewer depth involves "substantial changes" because it "requires that future developments build pump stations to handle sewer flows." (Italics added.) Davisson relies on this assertion to contend that further environmental review and a revision of the 2014 EIR is necessary. As discussed in part III.A.2.b, ante, the record does not support Davisson's premise that future developments will be required to build pump stations as a result of the approval of the 20-foot depth sewer system in the Lumina Project. Although Davisson repeatedly asserts that it is not speculation to conclude that pump stations will be required, Davisson is unable to point to anything in the record that indicates the number, size, or location of the pump stations that it asserts will be required. The record demonstrates instead that while additional pump stations may be necessary, there remains the possibility that no additional pump stations will be required in the CVSP area. As the record shows, a determination as to whether any future pump stations may be necessary, as well as how many and where one or more could be located, is based on a variety of conditions that are unknown at this point in the process, including pad elevations and grading decisions, and will depend on the results of sewer studies that will be required to be completed in connection with any new proposed development project. The evidence in the record from experts and technical reports supports the City's conclusion that, at this time, it is not possible to determine whether any additional pump stations will be required on other parcels because that determination cannot be made until the other developers are further along in the planning stages of their development projects.
For example, City staff explained that "sewer service [in an as-yet-unproposed development] will be dependent upon the respective elevations of the proposed project, which may necessitate the use of pump or life stations as authorized by the City Engineer," but "[s]uch [a] determination cannot be made until sewer studies are prepared and submitted for review by the Public Utilities Department." (Italics added.) The Sewer Study prepared in connection with the Lumina Project similarly noted that "it is possible that Davisson may be able to design a grading scheme to . . . eliminate future pumping."
CEQA does not require an agency to speculate as to the potential environmental impact of as-of-yet-unknown plans for development of other CVSP area developers. Rather, CEQA requires that an EIR undertake an analysis of the environmental effects of future expansion or other action only if "(1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396 (Laurel Heights).) Here, it is not certain that any additional pump stations will be required. Thus, for purposes of assessing whether a supplemental EIR was required, the City appropriately determined that a future pump station or pump stations are not a reasonably foreseeable indirect effect on the environment resulting from its approval of the Lumina Project. (See Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d692, 738 [" '[W]here future development is unspecified and uncertain, no purpose can be served by requiring an EIR to engage in sheer speculation as to future environmental consequences'"].)
In addition, this is not a case where no further environmental review will take place with respect to any potential additional pump stations that may be determined, in the future, to be necessary to support developments as they are proposed. The 2014 EIR is a program level EIR. "A program EIR is an EIR which may be prepared on a series of actions that can be characterized as one large project and are related . . .: [If] • . • [If] • • • [i]n connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program." (CEQA Guidelines, § 15168, subd. (a)(3).) A program EIR is designed to "(1) Provide an occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action, [Tf] (2) Ensure consideration of cumulative impacts that might be slighted in a case-by-case analysis, [If] (3)Avoid duplicative reconsideration of basic policy considerations, [If] (4)Allow the lead agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts, [and] [If] (5)Allow reduction in paperwork." (CEQA Guidelines, § 15168, subd. (b).)
" 'Tiering'" is "the coverage of general matters in broader EIRs (such as on general plans or policy statements [like the program level 2014 EIR as issue here]) with subsequent narrower EIRs . . . ." (CEQA Guidelines, § 15385.) Tiering may be used "when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports." (§ 21093, subd. (a); see also CEQA Guidelines, § 15385, subd. (b).) In addressing the appropriate amount of detail required at different stages in the tiering process, the CEQA Guidelines state that "[w]here a lead agency is using the tiering process in connection with an EIR for a large-scale planning approval, such as a general plan or component thereof. . ., the development of detailed, site-specific information may not be feasible but can be deferred, in many instances, until such time as the lead agency prepares a future environmental document in connection with a project of a more limited geographic scale, as long as deferral does not prevent adequate identification of significant effects of the planning approval at hand." (CEQA Guidelines, § 15152, subd. (c), italics added.) In other words, "[t]ieringis properly used to defer analysis of environmental impacts and mitigation measures to later phases when the impacts or mitigation measures are not determined by the first-tier approval decision but are specific to the later phases." (Vineyard Area Citizens, supra, 40Cal.4thatp. 431.)
Given the tiered nature inherent in the program level 2014 EIR, it is clear that as additional specific development projects are proposed for the remaining parcels in the CVSP area, those projects will have to undergo environmental review to receive approval, therefore ensuring that if any future sewer studies undertaken in connection with proposed additional development in the CVSP area ultimately determine that one or more pump stations will be needed to support that development, environmental concerns, as well as mitigation measures, will be addressed. As the record demonstrates, the City will require all future development plans to conduct and submit their own sewer studies, in accordance with the Public Utilities Sewer Design Guide, to identify how their proposed development plans account for the provision of sewer service. But as of the time the Lumina Project was being considered by the City for approval, it was clear that "site planning for the remaining [CVSP area parcels] has not advanced in parallel with [the Lumina Project]" and, as a result, "[n]o information was available from other properties" with respect to their potential sewer system infrastructure needs. Thus, in this case, it would be virtually impossible for the City to complete any analysis of the environmental impacts and mitigation measures necessary to address future potential pump stations that may never be required. The City has properly utilized the" [t]iering" process here; the City is "deferring] analysis of environmental impacts and mitigation measures to later phases" because the possible impacts are, necessarily, "specific to the later phases" of development and can be adequately addressed only once those later phases development are proposed with specifics related to sewer infrastructure that is determined by technical analysis to be required to service such development. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 431.) If a proposed project's sewer study demonstrates that one or more pump stations will be required to service that project, then at that point the City will consider the environmental impacts and mitigation measures of the building and operation of those pump stations; the impact of additional pump stations, if ultimately necessary, will not escape environmental review.
" 'CEQA mandates that environmental considerations [do] not become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences. [Citation.] CEQA attempts to avoid this result by defining the term "project" broadly. [Citation.] A project under CEQA is the whole of an action which has a potential for resulting in a physical change in the environment, directly or ultimately, and includes the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies.'" (East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th281, 293 (East Sacramento).) "The process of attempting to avoid a full environmental review by splitting a project into several smaller projects, which appear more innocuous than the total planned project, is referred to as 'piecemealing.' [Citation.] Our Supreme Court set forth the relevant standard: 'We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project.'" (East Sacramento, supra, 5 Cal.App.5that p. 293, quoting Laurel Heights, supra, 47Cal.3datp. 396.) "Improper piecemealing occurs 'when the purpose of the reviewed project is to be the first step toward future development' or 'when the reviewed project legally compels or practically presumes completion of another action.' [Citation.] By contrast, an EIR need not analyze 'specific future action that is merely contemplated or a gleam in a planner's eye. To do so would be inconsistent with the rule that mere feasibility and planning studies do not require an EIR.'" (East Sacramento, supra, 5 Cal.App.5th at p. 293.) As we have previously explained, no one has been able to definitively state whether one or more pump stations may be necessary in connection with the future development of Davisson's property. The Lumina Project Sewer Study indicated that it remains possible that no additional pump stations will be needed. Thus, the City could reasonably conclude that additional pump stations are not "a reasonably foreseeable consequence of the [Lumina] project" and that future expansion after the Lumina Project is not likely to "change the scope or nature of the initial project [i.e., the OMCPU]" (East Sacramento, supra, 5 Cal.App.5th at p. 293), given that an expanded sewer system, including one that may require the incorporation of additional pump stations, has been envisioned for the entire Otay Mesa Community Plan area's buildout since at least the 2005 Otay Mesa Trunk Sewer Final EIR. The record supports the conclusion that approval of the Lumina Project does not "legally compel[ ] or practically presume[ ] completion of the building of additional pump stations. (Ibid.) CEQA does not require the City to speculate as to the potential environmental impacts from one or more additional pump stations that may never be necessary. We therefore reject Davisson's assertion that the City is attempting to avoid full environmental review of the development in the Otay Mesa Community Plan area by improperly "piecemealing" a larger project into smaller ones with respect to the sewer plans. We conclude that the City's "tiering" of its environmental review is appropriate and reject Davisson's contention that the City's approval of the 20-foot deep sewer system in the Lumina Project constitutes unlawful "piecemealing" under CEQA.
Given all of the above, we reject Davisson's contention that the City abused its discretion in issuing an addendum to the 2014 EIR, rather than a supplemental EIR, with respect to the Lumina Project.
b. The addendum issued by the City is not inadequate as a matter of law
Finally, we reject as unmeritorious Davisson's contention that the addendum adopted by the City is inadequate, as a matter of law, under CEQA. Davisson contends that the addendum is insufficient because it "contains no discussion of the reasonably foreseeable impacts associated with the change in sewer infrastructure, provides an incomplete and misleading discussion of the Project alternative, and is inconsistent with the CAP, the CVSP, and the CPU."
In connection with this argument, Davisson cites to section 21061 and CEQA Guidelines section 15003, subdivisions (b) through (e), which set out definitions and legal standards applicable to EIRs, not standards applicable to addenda to EIRs.
As we have concluded in part III.A, ante, the City did not abuse its discretion in concluding that the Lumina Project is consistent with the Plans. We therefore reject the argument that inconsistencies between the Lumina Project and the Plans renders the addendum deficient under CEQA.
Davisson is also incorrect in asserting that the City's issuance of an addendum is inadequate because the City failed to sufficiently consider and analyze "project alternatives." Davisson contends that CEQA "requires that an EIR consider and analyze project alternatives that would reduce adverse environmental impacts." Davissongoes on to discuss how the Lumina Project's Sewer Study addressed a 31-foot deep alternative to the 20-foot deep sewer system that was ultimately proposed, and argues that the City's decision to reject that alternative is not supported by the record. However, the Lumina Project's approval involved the subsequent review process because an initial program level EIR had already been approved by the City-i.e., the 2014 EIR had already discussed the potential environmental impacts that would result from development pursuant to the OMCPU. Unlike an EIR, an addendum is not required to analyze alternatives to the proposed project. (See CEQA Guidelines, 15164, subd. (e).)
Finally, as we previously concluded, the City did not abuse its discretion in issuing the addendum because, contrary to Davisson's assertions, any potential environmental effects from the building and operation of pump stations in other areas of the CVSP area is not reasonably foreseeable as a result of the 20-foot sewer system in the Lumina Project and, therefore, the addendum cannot be said to be insufficient on the ground that it purportedly fails to address these "impacts."
We therefore reject Davisson's claim that the City's addendum is deficient as a matter of law.
IV.
DISPOSITION
The judgment of the trial court is affirmed. The City is entitled to costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.