Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Orange County No. 06CC13348, Gail Andrea Andler, Judge.
Procopio, Cory, Hargreaves & Savitch, Evelyn F. Heidelberg and Kendra J. Hall for Plaintiff and Appellant City of El Cajon.
Latham & Watkins, Allen D. Haynie, Daniel P. Brunton, and Adrianna B. Kripke for Real Party in Interest and Appellant Home Depot, USA, Inc.
Colantuono & Levin and Holly O. Whatley for Defendants and Respondents San Diego Local Agency Formation Commission and Commissioners of the County of San Diego Local Agency Formation Commission.
John J. Sansone, County Counsel, C. Ellen Pilsecker and Marian Brewster, Deputy County Counsel, for Real Party in Interest County of San Diego.
Lounsbery Ferguson Altona & Peak and Alena Shamos for Real Party in Interest Lakeside Fire Protection District.
Best Best & Krieger, Clark H. Alsop and Kira L. Klatchko for California Association of Local Agency Formation Commissions, as Amicus Curiae on behalf of Defendants and Respondents San Diego Local Agency Formation Commission.
OPINION
RYLAARSDAM, J.
This case involves an action under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (the Act). (Gov. Code, § 56000 et seq., all further statutory references are to the Government Code unless otherwise indicated.)
The City of El Cajon (City) and Home Depot, USA, Inc. (Home Depot; collectively plaintiffs) appeal from a judgment in favor of the San Diego Local Agency Formation Commission (LAFCO), its commissioners, the County of San Diego (County), and Lakeside Fire Protection District (Lakeside). The judgment was entered in a consolidated action involving City’s petition for a writ of mandate to overturn the denial of its request to annex and reorganize the services of an unincorporated parcel of land owned by Home Depot and the latter party’s cross-complaint for damages allegedly arising from the denial. Only the ruling on City’s petition is challenged on appeal.
The primary issues presented are whether LAFCO (1) abused its discretion by finding the property sought to be annexed was not “substantially surrounded” by City under the Act, and (2) violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by making findings on the annexation/reorganization request that contradicted the findings contained in an environmental impact report (EIR) prepared for Home Depot’s proposed development of the property. We conclude the answer to both of these questions is yes and reverse the judgment on City’s petition.
FACTS AND PROCEDURAL BACKGROUND
The property in question consists of 14.31 acres of unincorporated territory owned by Home Depot. City borders the property on its north, west, and south sides, constituting 68 percent of the parcel’s perimeter. The property’s fourth side abuts a freeway, Interstate 8. County’s general plan and zoning ordinances designate the property for residential use. But the property is located within City’s sphere of influence and City’s general plan has designated it for commercial use since 1979. Currently, fire protection services are provided by Lakeside, which is separated from the property by the freeway. However, City’s fire department has the closest station and it is designated as the first responder for emergency services. City’s police station is also closer to the property than the County’s sheriff’s department. In addition, City has a sewer main adjacent to the property, and the proposed annexation would not result in any change for the provision of water to the parcel.
A variety of commercial enterprises have used the property since the 1940’s. Currently, a 5, 000 square-foot office building and adjacent parking lot, occupied by a private business, are located on the property’s western edge. The property also includes two abandoned residences that are accessible by a road, plus a billboard next to Interstate 8.
Home Depot first proposed constructing a home improvement store on the property in the late 1990’s and prepared an EIR for the project. City certified the EIR, but denied Home Depot’s application for a prezoning change and conditional use permit at that time. In 2004, Home Depot resubmitted its proposed development to City along with an addendum to the EIR. Both the original EIR and the addendum concluded some aspects of the project would not result in any significant environmental impacts and, with identified mitigation measure, aspects of the project that would cause significant impacts could be reduced to a level below significance. In mid-2005, City approved the project. It adopted the EIR’s addendum, a prezoning change to allow retail and commercial use of the property and a conditional use permit, and issued a resolution requesting LAFCO initiate proceedings for annexation of the property and its reorganization, i.e., detachment from Lakeside and other service providers covering the property.
County filed a lawsuit challenging the EIR and the addendum. That case was dismissed because County failed to name Home Depot as the real party in interest and did not discover its error until after the statute of limitations had expired.
LAFCO conducted hearings on City’s annexation/reorganization resolution in May and June 2006. In preparation for the hearings, LAFCO’s executive officer drafted a staff report on the proposal. The report acknowledged “[s]tate [l]aw places express limitations on the power and discretion of LAFCO to disapprove city annexations, when a commission finds that certain conditions exist, ” such as a “territory that is surrounded or substantially surrounded, ” “and meets certain other requirements.” But, finding the property was not substantially surrounded by City, it rejected the claim that approval of the proposal was mandatory.
According to the staff report, “The local conditions and circumstances related to the Home Depot reorganization are very unique [sic] and could not have been adequately addressed or anticipated through a state statute or local procedure. The depth of the concerns related to the Home Depot Reorganization is compelling.... [O]ver 50 letters, ... petitions, and numerous letters from local agencies have been sent... expressing serious concerns about the proposal. This level of local agency and citizen concern must[, ] therefore, be considered in making a relevant boundary determination. [¶]... [¶] LAFCO staff believes that while [s]tate [l]aw encourages the elimination of islands and substantially surrounded territory, it also would be irresponsible to ignore the concerns expressed... to [LAFCO].... Based on the compelling nature of the concerns raised by citizens and local agencies and a review of important factors, LAFCO staff has concluded that evidence related to the Home Depot Reorganization points towards a determination that the reorganization site cannot be automatically defined as substantially surrounded by... City....”
Further, claiming “[t]he final determination of what constitutes a surrounded or substantially surrounded annexation boundary rests with LAFCO, ” and that “[t]he Legislature has intentionally deferred to each LAFCO the task of defining the technical and policy aspects associated with defining the term ‘substantially surrounded[, ]’” the report recommended “use [of] the factors embodied in... [s]ection 56668... to make the necessary findings....”
In support of its finding the property was not substantially surrounded, the report cited the commission’s receipt of “letters from affected residents, ” a petition “signed by over 1, 000 people” opposing the proposal, County’s opposition “based on the City’s environmental determinations as well as the proposed project’s incompatibility with the County’s General Plan, ” and Lakeside’s opposition to “the proposed reorganization because the associated detachment of the subject territory from [Lakeside] will cause a reduction in the annual property tax revenues allocated to the FPD.” The report concluded “[t]he depth and validity of concerns expressed by citizens and local agencies” constitute “compelling evidence that the proposed reorganization may have adverse effects on adjacent areas and the region (e.g., boundary, financial, service, community character, regional housing needs, and environmental issues, etc.).” Thus, the staff report recommended LAFCO deny the proposed annexation/reorganization.
In June 2006, LAFCO denied City’s application. Relying on “the Executive Officer’s report, ” and “evidence presented both verbally and in writing, ” LAFCO cited “the following reasons” for its decision: “1) Concurrence with the Executive Officer that the subject property is not an unincorporated island and is not substantially surrounded by... City...; 2) Severe adverse impacts would result from the proposed reorganization on the land use compatibility and community character in the predominantly residential neighborhood bordering the reorganization; 3) Serious cumulative environmental impacts on traffic, noise, and air quality would result from the Home Depot project; 4) A significant loss of property tax revenue to... Lakeside...; 5) The proposed ‘Home Depot Reorganization’ is inconsistent with adopted LAFCO Policy; and 6) Issues raised by subject agencies and concerned residents have not been satisfactorily addressed by the applicant.”
City filed a petition for a writ of mandate challenging LAFCO’s decision. Shortly thereafter, Home Depot filed a cross-complaint for declaratory and injunctive relief and damages alleging LAFCO’s denial of the application violated its constitutional rights. After a series of demurrers, the trial court dismissed Home Depot’s cross-complaint in its entirety and reduced City’s petition to causes of action for traditional mandamus relief and violation of CEQA.
Plaintiffs jointly sought a ruling on the mandamus petition. The trial court denied relief and entered judgment for defendants. It found the “decision to deny annexation, ” including LAFCO’s conclusion the property was not substantially surrounded, was “supported by substantial evidence in the record.” In particular, the court noted plaintiffs failed to cite any “cases or statutes prohibiting a LAFCO from considering the factors listed in [s]ec[tion] 56668 when voting on an island annexation.” On the CEQA claim, the trial court rejected plaintiffs’ claim “LAFCO ‘expressly rejected’ the City’s CEQA analysis” because the staff report “discussed the finding[s] of the EIR and... related addendum at length” and “then set forth addition detailed analysis regarding [its] concerns with respect to traffic, air quality, noise, land use, and cumulative impacts.”
DISCUSSION
1. The Act
“A local agency formation commission is an administrative body created pursuant to the... Act... to ‘control the process of municipality expansion. The purposes of the [A]ct are to encourage “planned, well-ordered, efficient urban development patterns with appropriate consideration of preserving open-space [and agricultural] lands within those patterns” [citation], and to discourage urban sprawl and encourage “the orderly formation and development of local agencies based upon local conditions and circumstances.”’ [Citations.]” (Citizens For Responsible Open Space v. San Mateo County Local Agency Formation Com. (2008) 159 Cal.App.4th 717, 721-722, fn. omitted.)
Section 56375 generally grants a local agency formation commission the authority “[t]o review and approve or disapprove with or without amendment, wholly, partially, or conditionally, proposals for changes of organization or reorganization, consistent with written policies, procedures, and guidelines adopted by the commission.” (§ 56375, subd. (a)(1).) Section 56668 of the Act contains a list of “[f]actors to be considered” by a commission when reviewing an annexation/reorganization proposal. These factors include “[t]he effect of the proposed action... on adjacent areas, on mutual social and economic interests, and on the local governmental structure of the county, ” (§ 56668, subd. (c)), “[t]he comments of any affected local agency or other public agency (§ 56668, subd. (i)), “[a]ny information or comments from the landowner or owners, voters, or residents of the affected territory” (§ 56668, subd. (m)), and “[a]ny information relating to existing land use designations” (§ 56668, subd. (n)).
However subdivision (a)(4) of section 56375 states: “A commission shall not disapprove an annexation to a city, initiated by resolution, of contiguous territory that the commission finds is any of the following: [¶] (A) Surrounded or substantially surrounded by the city to which the annexation is proposed or by that city and a county boundary or the Pacific Ocean if the territory to be annexed is substantially developed or developing, is not prime agricultural land..., is designated for urban growth by the general plan of the annexing city, and is not within the sphere of influence of another city. [¶]... [¶] (C) An annexation or reorganization of unincorporated islands meeting the requirements of Section 56375.3.”
Under section 56375.3, “[i]n addition to those powers enumerated in Section 56375, a commission shall do either of the following: [¶] (1) Approve, after notice and hearing, the change of organization or reorganization of a city... if all of the following are true: [¶] (A) The change of organization or reorganization is initiated on or after January 1, 2000, and before January 1, 2014. [¶] (B) The change of organization or reorganization is proposed by resolution adopted by the affected city. [¶] (C) The commission finds that the territory contained in the change of organization or reorganization proposal meets all of the requirements set forth in subdivision (b).” (§ 56375.3, subd. (a)(1).)
Subdivision (b) applies to a territory that: (1) “[D]oes not exceed 150 acres in area”; (2) is “an entire unincorporated island located within the limits of a city”; (3) “[s]urrounded, or substantially surrounded, by the city to which annexation is proposed or by the city and a county boundary or the Pacific Ocean”; (4) “substantially developed or developing... based upon one or more factors, ” which include “[t]he availability of public utility services, ” “[t]he presence of public improvements, ” and “[t]he presence of physical improvements upon the parcel or parcels within the area”; (5) “is not prime agricultural land”; and (6) “will benefit from the change of organization or reorganization or is receiving benefits from the annexing city.” (§ 56375.3, subd. (b).)
2. Standard of Review
Judicial review of a local agency formation commission’s decision is governed by section 56107, subdivision (c). It declares: “In any action or proceeding to attack, review, set aside, void, or annul a determination by a commission on grounds of noncompliance with this division, any inquiry shall extend only to whether there was fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the court finds that the determination or decision is not supported by substantial evidence in light of the whole record.” Courts have held this statute renders LAFCO decisions subject to judicial review under Code of Civil Procedure section 1085. (McBail & Co. v. Solano County Local Agency Formation Com. (1998) 62 Cal.App.4th 1223, 1227.)
McBail held, “in order for the trial court to intelligently evaluate whether substantial evidence supports the decision to deny the petition, LAFCO must first articulate the basis or reason for that decision.” (McBail & Co. v. Solano County Local Agency Formation Com., supra, 62 Cal.App.4th at p. 1227.) In addition, “the stated basis for the decision must have a rational connection to the purposes of the enabling statute”; otherwise the “determination by the administrative agency will not withstand the scrutiny of judicial review....” (Ibid.)
“‘“‘In reviewing the trial court’s ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.]’ [Citation.]”’ [Citation.]” (Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 47-48.) In addition, “[t]he interpretation of a statute is a legal issue subject to de novo review. [Citation.]” (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1491.)
3. LAFCO’s Decision
Plaintiffs contend the trial court erred in refusing to require LAFCO to approve the annexation/reorganization application for Home Depot’s property, arguing “the ordinary meaning of ‘substantially surrounded’ is not subject to LAFCO’s unfettered discretion under section 56668, ” and “as a matter of law” City substantially surrounds Home Depot’s property. Defendants respond, citing the deference courts accord local agency formation commission rulings, and contend the trial court correctly found LAFCO properly exercised its discretion in ruling on City’s application.
We conclude the judgment must be reversed. City applied for annexation and reorganization of Home Depot’s property by resolution within the relevant statutory period. LAFCO’s staff report acknowledges the property is contiguous to City, covers less than 150 acres, does not constitute prime agricultural land, falls within City’s sphere of influence, and has been designated for commercial use by City’s general plan. The only two statutory factors LAFCO disputes are whether the property is substantially developed or developing and whether the property is substantially surrounded by City.
A consideration of these requirements requires an interpretation of the statutory language. A court’s “primary task when faced with a question of statutory construction is to determine the intent of the Legislature, and we begin by looking to the statutory language. [Citation.] We must give ‘the language its usual, ordinary import and accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.’ [Citation.] If the statutory language is susceptible of more than one reasonable interpretation, we must look to additional canons of statutory construction to determine the Legislature’s purpose. [Citation.] ‘Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.’ [Citation.]” (McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110.)
Concededly the Act does not give express definitions of the phrases “substantially developed or developing” and “substantially surrounded.” But notwithstanding a local agency formation commission’s generally broad discretion in ruling on annexation and reorganization requests, “‘“‘Whatever the force of administrative construction... final responsibility for the interpretation of the law rests with the courts.’ [Citation.]”’ [Citation.]” (Tillie Lewis Foods, Inc. v. City of Pittsburgh (1975) 52 Cal.App.3d 983, 1010 [rejecting claim court should defer to local agency formation commission’s interpretation of laws relating to municipal annexations].) Here, the record unambiguously shows all of the statutory requirements contained in section 56375, subdivision (a)(4) and 56375.3 were satisfied in this case, and under the language of those sections LAFCO could not disapprove City’s annexation/reorganization request.
As for the phrase “substantially developed or developing, ” we first note LAFCO did not cite the absence of this factor as a basis for denying City’s application for annexation/reorganization of Home Depot’s property. Second, section 56375.3 indicates what the Legislature understood that phrase meant. Subdivision (b)(4) refers to “[t]he availability of public utility services” and “[t]he presence of [both] public [and private] improvements.” (§ 56375.3, subd. (b)(4).) LAFCO’s staff report acknowledged water service to the property already exists and “City... has existing sewer mains adjacent to the reorganization area” with sufficient “capacity... to serve the proposed development.” The report further acknowledged “the property has been used for various commercial purposes since at least the 1940s” and currently includes a “single family house, ” a “mobile home” with “a road providing access” to these structures, plus “a 5, 000 square-foot office building and accompanying paved parking area on the western portion of the property... currently occupied by a fire protection company.” Finally, LAFCO’s staff report noted the portions of City adjacent to Home Depot’s property are improved with residences and a recreational vehicle park. Given the legislative description of what constitutes “substantially developed or developing” and LAFCO’s own findings concerning the present state of Home Depot’s property, we conclude this requirement is satisfied.
The bulk of the parties’ argument relates to the meaning of the phrase “substantially surrounded” as it is used in sections 56375, subdivision (a)(4) and 56375.3, subdivision (b)(3)(A). Arguing “[t]he ordinary and commonsense meaning of substantially surrounded is something that is ‘enclosed, encompassed, or encircled to an ample or considerable extent, ’” plaintiffs claim that, as a matter of law, Home Depot’s property was substantially surrounded by City. Defendants contend “the plain language of the statute, paired with its legislative history and its interpretation by the very agencies tasked with doing so, belie... City’s claim” it “necessarily [was] required... to find the property ‘substantially surrounded’ based solely on the assertion 68% of the [p]roperty’s perimeter borders the City....”
The statutory language reflects geographic and physical factors are the primary determinants of whether a parcel is substantially surrounded by an agency seeking an annexation or reorganization of it. Both sections 56375, subdivision (a)(4) and 56375.3, subdivision (b)(3)(A) refer to parcels that are “[s]urrounded or substantially surrounded by the city to which the annexation is proposed or by that city and a county boundary or the Pacific Ocean....” Fig Garden Park No. 2 Assn. v. Local Agency Formation Com. (1984) 162 Cal.App.3d 336, a case decided under a prior municipal reorganization statute that allowed annexation without election if the property at issue was surrounded or substantially surrounded, noted the rationale underlying these statutes “is a strong governmental interest in avoiding pockets of unincorporated territory. [Citation.]” (Fig Garden Park No. 2 Assn. v. Local Agency Formation Com., supra, 162 Cal.App.3d at p. 342.)
Home Depot’s property presents a paradigmatic example of a pocket of unincorporated territory to which sections 56375 and 56375.3 were intended to apply. Sixty-eight percent of the property’s boundary is coterminous with City. The only noncontiguous portion abuts a freeway, completely blocking access to the property from that direction. In addition, the property on the freeway’s opposite side is under the jurisdiction of County. Under these circumstances, not only is delivery of services and access to the property available solely through City, absent the freeway, the statutory definition for a parcel that is completely surrounded would be satisfied. (§§ 56375, subd. (a)(4)(A) & 56375.3, subd. (b)(3)(A).)
Defendants downplay the significance of the contiguity between City and Home Depot’s property. They cite to the standards announced by the local agency formation commissions in other counties and the Legislature’s rejection of a proposal to insert a minimum boundary contiguity requirement in the Act. We note the standards employed in the counties identified by defendants focus on geographic and physical factors, including the extent to which the municipality seeking annexation borders the property sought to be annexed.
As for the Legislature’s decision not to amend the Act “‘“... [F]ailure to make changes in a given statute in a particular respect when the subject is before the Legislature, and changes made in other respects, is indicative of an intention to leave the law unchanged in that respect.” [Citations.]’ [Citations.]” (Tillie Lewis Foods, Inc. v. City of Pittsburgh, supra, 52 Cal.App.3d at p. 1003.) Case law decided under prior municipal reorganization statutes that permitted annexation of allegedly surrounded or substantially surrounded parcels focused on the extent of contiguity between the property in question and the municipality seeking the annex the property. (Fig Garden Park No. 2 Assn. v. Local Agency Formation Com., supra, 162 Cal.App.3d at p. 346 [“clear that the area... was substantially surrounded” where “98 percent of its perimeter being part of the City”]; Schaeffer v. County of Santa Clara (1984) 155 Cal.App.3d 901, 905 [assuming parcel “surrounded by the City” on “68 percent of its boundary line” was substantially surrounded]; Scuri v. Board of Supervisors (1982) 134 Cal.App.3d 400, 407 [affirming annexations by two cities of three lots surrounded by the annexing entity to the extent of 79.8 percent, 89.13 percent, and 82.4 percent].) While it may be true that, in some situations, the extent of contiguity between an unincorporated parcel and a municipality seeking to annex it might not, alone, support a finding the parcel is substantially surrounded, that is clearly not the situation presented here.
LAFCO cites the wide discretion accorded to local agency formation commissions in reviewing annexation/reorganization proposals and a commission’s authority to consider the factors listed in section 56668. First, we note “‘[a] local agency formation commission... is a creature of the Legislature and has only those express (or necessarily implied) powers which are specifically granted to it by statute.’ [Citations.]” (Tillie Lewis Foods, Inc. v. City of Pittsburgh, supra, 52 Cal.App.3d at pp. 999-1000.) Second, in interpreting a statutory enactment, “we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. [Citation.]” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) “We must of course read statutes as a whole so that all parts are harmonized and given effect. [Citation.]” (Ste. Marie v. Riverside County Regional Park and Open Space Dist. (2009) 46 Cal.4th 282, 289.)
The broad authority accorded to LAFCO must be construed along with the limitations imposed by sections 56375 and 56375.3. The latter provisions limit a local agency formation commission’s otherwise broad authority in reviewing annexation and reorganization requests in specific situations. Section 56375, subdivision (a)(4) declares “[a] commission shall not disapprove an annexation to a city, initiated by resolution” where the specified circumstances are found to exist. And under 56375.3, subdivision (a)(1) “a commission shall... [¶]... [a]pprove” a “reorganization” when similar circumstances exist. Thus, it is clear these statutes circumscribe a local agency formation commission’s otherwise wide discretion in reviewing such requests.
We conclude the evidence fails to support LAFCO’s finding Home Depot’s property is not substantially surrounded by City and the analysis it employed to reach the opposite conclusion is not rationally connection to the Act’s purposes. Consequently, the trial court erred in upholding LAFCO’s decision.
4. LAFCO’s CEQA Findings
As noted, Home Depot prepared an EIR for development of a home improvement store on the property in the late 1990’s. City certified the EIR at the time, but declined to approve the project. When Home Depot sought reconsideration of the development in 2004, it prepared an addendum to the original EIR. Both the original EIR and the 2004 addendum concluded the project would result in either no significant environmental impacts or, with identified mitigation measures, the project’s impacts would be reduced to a level of insignificance. In approving the project, City adopted the EIR’s addendum, finding no substantial evidence required the preparation of a supplemental EIR.
The executive staff report acknowledged “LAFCO[’s]... limited... role” as “responsible agency” and that it “must rely on the EIR certified by [City] as lead agency.” But the report concluded “a comprehensive review of the proposal should include the technical environmental concerns as a relevant factor to be considered by [LAFCO].” The report proceeded to question the EIR’s and addendum’s findings on the project’s traffic, air quality, noise, land use, and cumulative impacts. Finally, while concluding “[m]ost all of LAFCO staff’s technical conclusions regarding the Home Depot EIR cannot be categorized as ‘new’ information that was not apparent when the EIR was written, ” the report notes “[h]ad the County... consulted with LAFCO prior to the filing... of [its] CEQA challenge, LAFCO staff’s technical conclusions might have established a basis to challenge the EIR.” LAFCO’s resolution denying City’s annexation/reorganization application asserted “[s]erious cumulative environmental impacts on traffic, noise, and air quality would result from the Home Depot project” as one basis for its ruling.
Plaintiffs now contend “LAFCO’s inclusion of ‘additional details analysis regarding their concerns’ that directly contradicted the City’s EIR was a rejection of the City’s environmental findings without complying with the special procedural rules for challenging them.” We agree.
Since City had prezoned Home Depot’s property, it was the lead agency responsible for preparing the EIR and its addendum. LAFCO held the role of a responsible agency. (City of Redding v. Shasta County Local Agency Formation Com. (1989) 209 Cal.App.3d 1169, 1175; Cal. Code Regs., tit. 14, § 15051, subd. (b)(2).) County’s attempt to challenge the addendum’s adoption was dismissed based on its failure to comply with the applicable statute of limitations and that decision is now final.
Public Resources Code section 21167.2 provides, “If no action or proceeding alleging that an environmental impact report does not comply with the provisions of this division is commenced during the period prescribed in subdivision (c) of [s]ection 21167, the environmental impact report shall be conclusively presumed to comply with the provisions of this division for purposes of its use by responsible agencies, unless the provisions of [s]ection 21166 are applicable.” The latter statute declares: “When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.”
Defendants claim the staff report’s discussion of the EIR and addendum reflects it complied with its CEQA obligations “by considering the EIR... prepared by the lead agency” in “reaching its own conclusions on whether and how to approve the project involved.” (Cal. Code Regs., tit. 14, § 15096, subd. (a).) The trial court agreed with this interpretation of the record, but we conclude otherwise.
While “a responsible agency with permit authority... reach[es] its own conclusions as to whether and how to approve the project, notwithstanding the lead agency’s approval of the project [citations], ” it “must, as a general rule, use the EIR prepared by the lead agency, even if [the responsible agency] believe[s] it to be inadequate. [Citation.]” (Central Delta Water Agency v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 245, 274.) LAFCO’s staff report acknowledged none of the exceptions listed in Public Resources Code section 21166 apply in this case, but nonetheless questioned the EIR’s and addendum’s conclusions about the project’s impacts. In addition LAFCO’s resolution denying annexation/reorganization found “[s]erious cumulative environmental impacts... result[ing] from the Home Depot project.” Thus, the record reflects LAFCO did in fact dispute some of the environmental findings contained in the EIR and the addendum approved by City.
Alternatively, defendants claim LAFCO did not need to comply with CEQA because it disapproved City’s annexation/reorganization application. This argument lacks merit. While it is true CEQA “does not apply to” a “[p]roject[] which a public agency rejects or disapproves” (Pub. Resources Code, § 21080, subd. (b)(5)), this statute necessarily applies to the lead agency’s rejection of a project. Here, City, as lead agency, approved the Home Depot project. If LAFCO could avoid CEQA compliance by simply denying the annexation/reorganization application, it would render the foregoing statutes and guidelines governing lead agency and responsible agency duties superfluous.
Therefore, we conclude LAFCO was obligated to comply with CEQA in reviewing City’s annexation/reorganization application and the trial court erred in finding LAFCO complied with its duties under CEQA in this case.
DISPOSITION
The portion of the judgment denying appellant City of El Cajon’s petition for a writ of mandate is reversed and the matter is remanded to the superior court with directions to enter a judgment issuing a writ directing respondent San Diego Local Area Formation Commission to grant appellant’s application for annexation and reorganization of real party in interest Home Depot’s property. The portion of the judgment dismissing appellant Home Depot’s cross-complaint is affirmed. Appellants shall recover their costs on appeal.
WE CONCUR: SILLS, P. J., MOORE, J.