Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. Nos. INCR465472 & INC064883, Harold W. Hopp, Judge.
Atkinson, Andelson, Loya, Ruud & Romo, Terry T. Tao, Jeremy K. Brust and Ryan T. Christensen for Defendant and Appellant.
Green de Bortnowsky & Quintanilla, Steve Quintanilla and Randall Nakashima for Plaintiff and Respondent City of Rancho Mirage.
Johnson & Sedlack, Raymond W. Johnson, Abigail A. Broedling and Veera Tyagi for Plaintiff and Respondent The Committee of 1000.
OPINION
Gaut, J.
CEQA is the California Environmental Quality Act. (Pub. Resources Code, §§ 21000-21177.) All statutory references are to the Public Resources Code unless stated otherwise.
The Palm Springs Unified School District (the District) proposed building a new high school and elementary school. The project is opposed by nearby residents, a group called the Committee of 1000 (the Committee), and the City of Rancho Mirage. After the District certified a final Environmental Impact Report (EIR), the Committee and Rancho Mirage filed separate CEQA petitions for writ of mandate challenging the final EIR.
The trial court granted the petitions, ruling partly in favor of the petitioners and partly in favor of the District. The grounds for the court’s rulings were its findings that, although the final EIR was sufficient, the District did not evaluate reasonable alternatives adequately and it performed a piecemeal environmental review of a proposed 4.4-acre maintenance yard. The District appeals and the Committee cross-appeals citing additional considerations of aesthetics, biology, and noise impacts.
Based on our de novo review, we reverse in favor of the District. Substantial evidence in the administrative record demonstrates the following: the District adequately evaluated the reasonable alternatives; the proposed maintenance yard is too speculative to trigger environmental review; and the mitigation measures identified in the final EIR are appropriate.
2. Factual and Procedural Background
Planning for the proposed project began as early as 2004. The draft EIR describes the project as being located on two 40-acre undeveloped parcels in and near Rancho Mirage at Ramon and Da Vall Drive and bordering the Tuscany residential subdivision. The new high school is planned to accommodate about 3,000 students and the elementary school about 555 students, and includes a 1,700-person sports stadium. Protected species included the federally-endangered Coachella Valley milk-vetch. The draft EIR was submitted for public review and comment in September 2006.
We acknowledge there is disagreement between the parties about the exact figures.
On January 9, 2007, the District certified the EIR, adopted a statement of overriding considerations and a mitigation monitoring program, and approved the final EIR.
The final EIR includes the following information that was not part of the draft EIR:
“The PSUSD [District] will eventually construct a district maintenance or other non-school facility at the northeast corner of the project site, so the actual distance from the railroad to any classroom uses in the northeast corner of the elementary portion of the proposed elementary school site would be more than 1,500 feet from the railroad line, as required by Education Code Section 17212.” This is the only sentence about a maintenance yard in the final EIR. The same information is repeated in two other locations in the administrative record.
In February 2007, the Committee and Rancho Mirage filed their writ petitions.
After the hearing, the trial court made the following ruling:
“Petitioner City of Rancho Mirage argues that respondent Palm Springs Unified School District violated [CEQA] by including an inadequate and internally inconsistent description of the project in the Environmental Impact Report, failing to properly mitigate the impact of the football stadium or to address properly other impacts of the project, and by separating improperly the proposed maintenance yard from the project.
“The Court finds that the project description is sufficient and is not internally inconsistent. Further, the Court finds that the EIR adequately analyzes all potentially significant environmental impacts and contains sufficient mitigation measures. However, PSUSD failed to properly consider the maintenance yard in the EIR because it appears that the PSUSD should have more fully analyzed the impact of the proposed maintenance yard and not treated it in a piecemeal fashion.”
Regarding the Committee’s petition, the court made a similar ruling:
“Petitioner The Committee of 1000 argues that respondent Palm Springs Unified School District violated [CEQA] by including an inadequate project description in the Environmental Impact Report, failing to properly analyze all potentially significant environmental impacts and/or adopt appropriate mitigation measures, and by failing to appropriately consider alternatives to the project and by not re-circulating the EIR following the public comment period.
“The Court finds that the project description is sufficient and is not internally inconsistent. Further, the Court finds that the EIR adequately analyzes all potentially significant environmental impacts and contains sufficient mitigation measures. However, respondent failed to evaluate alternatives to the project and should have recirculated the EIR after it disclosed following the close of the public comment period that it planned a maintenance facility on the property that is the subject of the project.”
3. The Standard of Review
We adopt a recent pronouncement of the California Supreme Court on the standard of review for CEQA appeals:
“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) [Fn. omitted.] Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ (Ibid.; see Western States Petroleum Assn. v. Superior Court [(1995) 9 Cal.4th 559,] 568; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 (Laurel Heights I).) [Fn. omitted.]
“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427.) We therefore resolve the CEQA issues by independently determining whether the administrative record demonstrates any legal error by the District and whether it contains substantial evidence to support the District’s factual determinations.
4. The District’s Appeal
The District’s appeal concerns two issues, the project alternatives and the maintenance yard.
a. Project Alternatives
The District asserts the trial court erred when it found the District had failed to consider project alternatives because the court incorrectly substituted its own judgment for that of the District. We agree.
“CEQA’s substantive mandate that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures is effectuated in section 21081. [Citation.] Under this provision, a decisionmaking agency is prohibited from approving a project for which significant environmental effects have been identified unless it makes specific findings about alternatives and mitigation measures. [Citations.] The requirement ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134, citing Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896.) “Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s impact on the environment, the agency’s approval of the proposed project followed meaningful consideration of alternatives and mitigation measures.” (Mountain Lion, supra, at p. 134.)
The District first contends it properly reviewed a reasonable range of potentially feasible alternatives. (CEQA Guidelines § 15126.6, subd (a); Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 569 (Goleta II).) The record reflects that, during the initial scoping process, the District conducted a lengthy site selection review in which it considered growth of student enrollment, the issue of Indian tribal or allotted land, the shape and size of proposed parcels, and the requirements of the Education Code and California Code of Regulations. (Ed. Code, §§ 17212, 17213, 17213.1, 17215, and 17215.5; Cal. Code Regs., tit. 5, § 14010.) All together, the District considered eight or nine possible sites. From the outset, the present proposed site received the highest rating.
In the final EIR, the District identified three project alternatives—no project, a residential project, and the school project. The latter included two school sites, both of which were analyzed in the EIR. The District made detailed final CEQA findings of fact addressing the issue of project alternatives.
The District relies on Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. (1992) 10 Cal.App.4th 908, in which the trial court upheld the City’s determination that there was only one feasible site for an aquarium. Similarly, in the present case, the District reviewed a number of potential sites, which it reduced to two alternatives, and finally concluded that the subject site is the most suitable.
In opposition, the Committee argues that the Alternative Project site, a 34.18-acre vacant site in Palm Desert, was not a legitimate alternative because it was too small—less than 50 or 60 acres—and presented safety issues. Therefore, it never satisfied the basic project objectives for a project alternative as required by CEQA Guidelines section 15126.6, subdivision (a). The Committee proposes the District should have evaluated a different “ideal” site in Cathedral City as a truly feasible alternative. In other words, the Committee accuses the District of manipulating the process to make sure the present site was chosen.
The administrative record demonstrates that the Rancho Mirage site is an 80-acre site, individually owned, and was always rated most highly suitable for the project (94 points). The Cathedral City property was also rated highly (92 points) but it was only 60 acres composed of two 10-acre parcels and one 40-acre parcel, separately owned. The Palm Desert property was rated the lowest (60 points) because it was too small (34.18 acres) and close to a major thoroughfare and a railroad line. The Palm Desert property was also rejected in the draft EIR because of noise, traffic, and parking considerations.
The other five or six alternative sites were deemed infeasible for various reasons. But overall, substantial evidence in the administrative record supports the District’s determination that the present site was the most feasible. (Goleta II, supra, 52 Cal.3d at pp. 568-569.) The record certainly did not support the trial court’s ruling that the District did not “evaluate alternatives to the project.” (Goleta II, supra, at pp. 565-567, 570-575; City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 416-417.) For the same reasons, we reject the Committee’s assertion that the EIR incorrrectly identified the proposed project as environmentally superior and its contention that the CEQA findings about project alternatives were inadequate.
b. The Maintenance Yard
Both the Committee and Rancho Mirage successfully argued to the trial court that the final EIR added to the project a proposed maintenance yard that had not been previously disclosed and had not received public comment. The record, however, does not support this characterization of the final EIR. As noted above, the draft EIR did not mention a maintenance yard. Instead, it referred only to the 4.4 acres as a “future pad site.” As explained in the clarification to the final EIR, the District planned eventually to use the 4.4-acre pad only for a nonschool use because Education Code section 17121 requires any school use to be more than 1,500 feet from a railroad line. The final EIR offers two examples of a nonschool use, a maintenance yard or other nonschool facility.
Other than this single sentence, however, the final EIR does not propose or describe any other plans for the 4.4-acre pad. Instead, included in the administrative record is a consultant’s statement that “this area cannot house classroom or educational buildings because of the proximity to the railroad lines to the northeast. The maintenance yard was mentioned only as an example of a type of non-educational use that may be considered in the future... the District will prepare the appropriate CEQA document for whatever use is eventually proposed in this northeast corner of the site. At present, no specific use is proposed.”
Based on a fair reading of the record, the mention of the possible ultimate use of the pad as a maintenance yard is wholly speculative, is not significant for CEQA purposes, and did not necessitate environmental review: Only “[s]ignificant cumulative effects of a project must be considered in an EIR. [Citations.] Under the administrative guidelines for EIR’s, an adequate discussion of cumulative impacts may include a list of ‘past, present, and reasonably anticipated future projects producing related or cumulative impact....’ (Cal. Code Regs., tit. 14, § 15130, subd. (b)(1)(A) (the Guidelines).) In Laurel Heights, supra, 47 Cal.3d 376, the Supreme Court considered ‘what circumstances require consideration in an EIR of future action related to the proposed project.’ (Id. at p. 395.) The Supreme Court stated the following test: ‘[A]n 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.’ (Id. at p. 396.) The Supreme Court explained that ‘[u]nder this standard, the facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.’ (Ibid., italics added.) Thus, discussion in at least general terms of future activity in connection with a project is required in an EIR. (Id. at p. 398.) However, ‘... where a proposed project itself is fully evaluated in an EIR, it is not improper to omit discussions of other separate projects. [Citation.]’ [Citations.]” (National Parks & Conservation Assn. v. County of Riverside (1996) 42 Cal.App.4th 1505, 1514-1515.)
At this stage, it would not be possible for the District to supply the information needed for environmental review because no specific use has been identified: “An EIR is not required to include speculation as to future environmental consequences of future development that is unspecified and uncertain. [Citation.] Overall, the EIR must ‘adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project.’ [Citation.]” (National Parks & Conservation Assn., supra, 42 Cal.App.4th at p. 1515; Lake County Energy Council v. County of Lake (1977) 70 Cal.App.3d 851, 855.)
Under these circumstances, the District did not commit a prejudicial abuse of discretion when it did not recirculate the final EIR for public comment. (Laurel Heights II, supra, 6 Cal.4th at pp. 1133-1135, citing § 21168.5.) As discussed in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at page 447, “[s]ection 21092.1 provides that when a lead agency adds ‘significant new information’ to an EIR after completion of consultation with other agencies and the public (see §§ 21104, 21153) but before certifying the EIR, the lead agency must pursue an additional round of consultation. In Laurel Heights II, supra, 6 Cal.4th at page 1129, we held that new information is ‘significant,’ within the meaning of section 21092.1, only if as a result of the additional information ‘the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.’ (Accord, CEQA Guidelines, Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) Recirculation is not mandated under section 21092.1 when the new information merely clarifies or amplifies the previously circulated draft EIR, but is required when it reveals, for example, a new substantial impact or a substantially increased impact on the environment. (Laurel Heights II, at pp. 1129-1130.) We further held the lead agency’s determination that a newly disclosed impact is not ‘significant’ so as to warrant recirculation is reviewed only for support by substantial evidence. (Id. at p. 1135.)”
In this case, public comments on the draft EIR raised concerns regarding the proximity of the 4.4 acres to the railway. After the District explained that acreage would have a nonschool use not finally determined, Rancho Mirage then objected that a maintenance yard would have potentially significant environmental effects that were not analyzed. But the objection is not based on an actual plan for a maintenance yard but on a future plan for a nonschool use, the actual impacts of which are not yet identifiable.
We conclude the District’s project description was sufficient and required no recirculation related to the speculative use of the 4.4-acre pad.
5. The Committee’s Appeal
The Committee’s appeal challenges the trial court’s finding that the EIR “adequately analyzes all potentially significant environmental impacts and contains sufficient mitigation measures.” Particularly, the Committee disagrees with the District’s CEQA findings of fact that “the Proposed Project would have a less than significant effect, including the imposition of appropriate mitigation measures [for]: (1) aesthetics, (2) biological resources... [and] (5) noise....”
a. Aesthetics
The Committee’s objections to the findings concerning aesthetics focus primarily on the mitigation of additional light and glare, especially from the stadium lights of the football stadium. The Committee complains that the planned use of “downward lighting,” limiting lighting to scheduled events, and testing and adjusting the lighting after installation may not achieve sufficient mitigation. The Committee also criticizes the planned landscaping as a mitigation measure because the EIR did not specifically describe the size, number, and type of plantings to be used and the height of the buildings.
In spite of the Committee’s criticisms, however, the administrative record contains substantial evidence about the mitigation of aesthetic effects. (Goleta II, supra, 52 Cal.3d at pp. 568-569.) The District obtained two modeling studies of the lighting system design which measured the anticipated increase in illumination and provided a basis for the planned mitigation efforts. The District also cannot be faulted for planning to calibrate the lighting system after its installation to make sure the mitigation was adequate. (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1025-1026.) As to the planned landscaping, surely the District did not have to provide an enumerated list of shrubbery to satisfy the mitigation requirement: “[A]n EIR need not be exhaustive... its sufficiency must be reviewed in light of what is reasonably feasible... we should look for adequacy and completeness, not perfection.” (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 80-81.) Furthermore, the EIR does, in fact, disclose the height of the school buildings as being approximately 35 to 45 feet.
b. Biological Impacts
The draft and final EIR and the CEQA findings of fact address mitigation for the project’s impact on 2,320 plants—the federally-endangered Coachella Valley milk-vetch—and the burrowing owl. The draft EIR identified other affected animal species, including the federally-threatened fringe-toed lizard, the flat-tailed horned lizard, and the round-tailed ground squirrel, the latter both California species of concern.
As mitigation for the milk-vetch and affected animal species, the District agreed to pay mitigation fees to the Coachella Valley Association of Governments (CVAG) and to the Agua Caliente Band of Cahuilla Indians. Additionally, the District promised to give 10-day notice to the California Department of Fish and Game to salvage the milk-vetch for offsite transportation.
The Committee contends the planned mitigation is not adequate for the milk-vetch, the fringe-toed lizard, the flat-tailed horned lizard, and the round-tailed ground squirrel. The Committee argues the payment of the mitigation fee is a purely speculative mitigation measure: “Fee-based infrastructure mitigation programs have been found to be adequate mitigation measures under CEQA.... [¶] Of course a commitment to pay fees without any evidence that mitigation will actually occur is inadequate.” (Save Our Peninsula v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 140; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1187.)
In the present case, the District agreed to pay mitigation fees to two habitat conservation plans, the interim Coachella Valley Multiple Species Habitat Conservation Plan and the proposed Tribal Multiple Species Habitat Conservation Plan ($800 per acre). The District also agreed to become a participating entity in the Coachella Valley Multiple Species Habitat Conservation Plan once it was fully approved and implemented. Although there was some negative public comment about the efficacy of the mitigation fees, the record still contained substantial evidence to support the District’s conclusion that the planned mitigation of biological impacts was adequate.
c. Noise Impacts
The draft and final EIR and the CEQA findings of fact address mitigation for the project’s long-term on-site noise, especially that caused by school activities like evening football games with the attendant crowds cheering, referees blowing whistles, and marching bands performing. Football games are expected to occur six to eight times per year.
The mitigation measures included “the stadium being built below grade so that the west end of the stadium is built into the earthen berm” on the west side. Additionally, “the public address system and the home stands are facing east away from residential units. Finally, a block wall surrounds the residential units, which will also attenuate the noise level within the residential properties.” According to the District’s analysis, these measures would mean noise levels would not violate County residential noise standards although they would violate the City standard. Another mitigation measure was to employ an acoustic consultant and a noise engineer to design and monitor noise levels to meet more stringent City standards.
The Committee complains the subject mitigation measures provide no performance standards or criteria and call for unenforceable post-approval mitigation. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793-794; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.)
The District responds the project is exempt from City noise standards although it apparently will comply with them. (Gov. Code, § 53094.) Furthermore, monitoring a mitigation measure after construction is not improper deferral, even when monitoring means further refinement of the mitigation. (Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d at pp. 1026.)
We agree with the District that there is substantial evidence that the proposed mitigation measures, which address design, implementation, and operation of the project to meet County (and City) noise requirements, satisfy CEQA.
6. Disposition
Although we affirm the trial court’s rulings on the adequacy of the final EIR, we disagree with the trial court on the issues of reasonable project alternatives and the eventual proposed nonschool use of the 4.4-acre parcel.
We reverse the judgment and direct the trial court to enter a new judgment denying in full the two CEQA writ petitions filed by the Committee and Rancho Mirage. The District as the prevailing party shall recover its costs on appeal.
We concur: McKinster, Acting P. J., Miller, J.