Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. GIC866527 of San Diego County, Ronald S. Prager, Judge.
In this action brought under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), National Enterprises, Inc. (National) appeals a judgment denying its petition for a writ of mandate seeking to suspend all activity on State Route 125 South Highway (the Project) until the California State Department of Transportation (CalTrans) and California Transportation Ventures, Inc. (CTV) (together respondents) prepare a subsequent or supplemental environmental impact report (EIR). (All undesignated statutory references are to the Public Resources Code.) National contends that Caltrans abused its discretion by failing to prepare a subsequent or supplemental EIR after CTV substantially changed the Project by eliminating a proposed interchange at Lonestar Road. For the reasons set forth below, we affirm the judgment denying the writ.
McINTYRE, Acting P. J.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991 CalTrans and CTV entered into a Development Franchise Agreement (the Agreement) that granted CTV exclusive rights to develop the Project as a toll road. The Agreement allowed CTV to enter into contracts with third parties as it deemed necessary to further the Project and provided that if CTV did "not diligently [pursue] the development and construction of additional capacity expansion of the Project" for a designated time period and after satisfaction of another condition, CalTrans's obligation to refrain from authorizing or constructing competing projects would end.
The Final EIR for the Project indicated that it would be initially constructed as a four-lane highway with interchanges at Otay Lakes Road/Telegraph Canyon Road, East H Street, State Route 54, a street connection at Otay Mesa Road and a transition to State Route 904. Ultimately, the highway would be expanded to eight lanes and include eight interchanges and freeway to freeway interchanges at State Routes 54 and 904. An interchange at future Mount Miguel Road would be initially constructed if the City of Chula Vista certified the Final EIR for the San Miguel Ranch Sectional Planning Area before start of construction on the Project; "otherwise, it [would] be constructed by others at a later date. The same is true of the Lonestar Road interchange; it [was to] be constructed as part of the initial Route 125 South project if it [was] funded by and approved as part of the Brown Field Aviation Center project." CalTrans filed a notice of determination approving the Project in February 2000.
On March 1, 2006, counsel for National wrote to CTV and indicated that construction on the Project was occurring at Lonestar Road without the "on and off ramps assumed" in the EIR. Two days later, CTV sent a letter (the March letter) indicating that the Lonestar interchange was not presently being constructed because the condition for building it during the initial phase of the Project did not occur. CTV noted that the EIR clearly indicated that others would build some of the interchanges and that building the Lonestar interchange was "the responsibility of others."
National filed this action the following month, alleging that the EIR required an interchange at Lonestar Road and that CTV's decision to eliminate the interchange was a substantial change in the Project that required supplemental or subsequent environmental review under CEQA. After considering the arguments of counsel, the trial court issued a statement of decision denying the petition. It concluded that no decision had been made to eliminate the Lonestar interchange and interpreted the March letter as simply informing National that the interchange was not presently being constructed because a condition precedent had not been met. The trial court also concluded that the noncompetition provision in the Agreement only related to competing projects and not the construction of the Project itself and that, to the extent National sought clarification of when the Lonestar interchange would be built, the petition was barred by the statute of limitations. National timely appealed from the judgment.
DISCUSSION
A subsequent EIR or a supplement to an EIR may be required in certain circumstances if an agency proposes a discretionary approval for a project after an EIR is certified. (§ 21166; Cal. Code Regs., tit. 14, §§ 15162, subds. (a), (c), 15163, subd. (a); all references to the CEQA Guidelines refer to title 14 of the California Code of Regulations.) A subsequent or supplemental EIR is required only if (1) substantial changes are proposed in the project that will require major revisions of the EIR, or (2) substantial changes occur with respect to the circumstances under which the project will be undertaken that will require major revisions in 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, subd. (a).) We review the administrative record to determine whether it contains substantial evidence supporting the decision not to require the preparation of a subsequent or supplemental EIR. (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 703.)
Respondents do not dispute, and we assume for purposes of discussion only, that elimination of the Lonestar interchange could be characterized as substantial enough to require CalTrans to file a subsequent or supplemental EIR to assess its environmental effects, as required by section 21166, subdivision (a). The primary question, however, is whether respondents actually eliminated the Lonestar interchange from the Project. The trial court reviewed the record and concluded that no decision had been made to eliminate the Lonestar interchange. Substantial evidence supports this conclusion.
The Final EIR stated that the Lonestar interchange would be built during the initial phase of the Project only if it was "funded by and approved as part of the Brown Field Aviation Center Project." National, however, presented no evidence showing this condition precedent was satisfied. Rather, the Final EIR contemplated that an interchange would be constructed at Lonestar Road when warranted by traffic demands. Thus, the current configuration of the Project is consistent with the Final EIR and National presented no evidence showing that CTV has not been diligently pursuing the development and construction of additional capacity expansion of the Project as required by its Agreement with CalTrans.
National argues that CTV's March letter, stating that CTV would never build the Lonestar interchange, proves that CTV has eliminated it from the Project and this substantial change required CalTrans to comply with the CEQA requirement regarding preparation of a subsequent or supplemental EIR. As a threshold matter, CTV's March letter is of no moment because the Agreement provides that only CalTrans, as the lead agency on the Project (§ 21067), has the ability to approve material modifications to the Project. National presented absolutely no evidence showing CalTrans approved the elimination of the Lonestar interchange and CalTrans vehemently denied this assertion. Even assuming CTV could change the scope of the Project, the March letter did not change the Project because it simply reiterated what is already in the Final EIR, to wit, that the Lonestar interchange would be built in the future by others.
To avoid this conclusion, National argues that the Final EIR and the Agreement required CTV, and no other party, to build the Lonestar interchange and CTV's statement that "others" would build the Lonestar interchange necessarily implied that the interchange would never be constructed. National's argument is not supported by the record.
The Agreement defined a "Transportation Facility" as a particular portion of the Project and identified the Transportation Facilities as I, II, III and IV. Transportation Facility I would be built by CTV in six stages, with the Lonestar interchange contemplated for the fourth stage. The Agreement granted CTV "Exclusive Development Rights" with respect to Transportation Facilities I and II. Nonetheless, the "Exclusive Franchise Rights" provision of the Agreement allowed CTV to determine "which, if any, Facilities, or stages thereof it [would] develop and the order in which it [would] do so." Thus, CTV's statement that the Lonestar interchange would be built by others is consistent with the Final EIR and the Agreement, which expressly allowed CTV to enter into contracts with third parties as it deemed necessary to further the Project.
Finally, National interprets the Final EIR as providing that only the Mount Miguel interchange would be built by others and that the "built by others" limitation does not apply to the Lonestar interchange. We do not agree with National's interpretation of the Final EIR. Additionally, to the extent this action seeks clarification of the Final EIR, particularly when the Lonestar interchange would be built and whether it would be built by CTV or others, we agree with the trial court's conclusion that the time period to seek clarification of the Final EIR has expired. (§ 21167; CEQA Guidelines, § 15094, subd. (g).)
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: O'ROURKE, J., AARON, J.