Opinion
E064187 E064207
12-21-2016
CREED-21, Plaintiff and Appellant, v. CITY OF MORENO VALLEY, Defendant and Respondent; ALDI, INC. et al., Real Parties in Interest and Respondents. CUMV, Plaintiff and Appellant, v. CITY OF MORENO VALLEY et al., Defendants and Respondents; ALDI, INC. et al., Real Parties in Interest and Respondents.
Briggs Law Corporation, Cory J. Briggs, and Anthony N. Kim; Leibold McClendon & Mann and John G. McClendon for Plaintiffs and Appellants. Murphy & Evertz, Douglas J. Evertz, Bradford B. Grabske, and Ali V. Tehrani for Defendants and Respondents and for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1403111) (Super.Ct.No. RIC1403052) OPINION APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge. Affirmed. Briggs Law Corporation, Cory J. Briggs, and Anthony N. Kim; Leibold McClendon & Mann and John G. McClendon for Plaintiffs and Appellants. Murphy & Evertz, Douglas J. Evertz, Bradford B. Grabske, and Ali V. Tehrani for Defendants and Respondents and for Real Parties in Interest.
In 2009, a developer proposed to build a massive distribution center on vacant land in the City of Moreno Valley (City). In 2011, the City certified an environmental impact report (EIR) for the project. However, actual construction languished. In 2013, grocery chain ALDI, Inc. (ALDI) proposed to buy the site and to build a somewhat smaller, somewhat modified distribution center to serve up to 150 ALDI stores. The City determined that ALDI's modifications required only an addendum to the original EIR rather than a subsequent or supplemental EIR.
Two organizations, CUMV and CREED-21 (collectively the Challengers), filed mandate petitions challenging this determination. The trial court denied the petitions. The Challengers appeal, contending that the City violated the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq.) (CEQA) by:
1. Agreeing in advance to proceed by way of an addendum.
2. Using a checklist to assess environmental impacts.
3. Improperly "piecemealing" the project.
4. Failing to find that an EIR was necessary to analyze the project's:
a. Urban decay impacts.
b. Growth-inducing impacts.
c. Air quality impacts.
d. Biological impacts.
e. Hydrology and water quality impacts.
Finding no error, we will affirm.
I
FACTUAL BACKGROUND
In 2008, an entity called Ridge Rancho Belago, LLC applied to build a distribution center in Moreno Valley (the Westridge Project). The project site was a 55-acre parcel close to where Redlands Boulevard crosses the 60 Freeway. It had historically been used for growing crops. The building would be 937,260 square feet. Of this, 14,000 square feet would be office space; the rest would be warehouse space, with 173 loading docks. It would have either one or two tenants. No specific tenant was as yet under contract.
In September 2009, based on an initial study, the City determined that the Westridge Project required an EIR. In September 2011, the City certified the final EIR for the Westridge Project (Original EIR).
ALDI is a worldwide grocery retailer. In 2013, it proposed to acquire the Westridge Project and to build it out as a distribution center that would also serve as its regional headquarters ("Orion Project" or "Project"). The Orion Project would modify the Westridge Project, primarily by (1) reducing the size of the building from 937,260 to 825,430 square feet and from 173 loading docks to 134 loading docks, (2) refrigerating approximately one-third of the warehouse space, and (3) increasing the office space from 14,000 to 50,000 square feet.
This was later reduced further to 800,430 square feet.
In June 2013, ALDI (through its subsidiary, AI California LLC) entered into a memorandum of understanding (MOU) with the City. The MOU provided, among other things, that:
"(a) The City's Planning Division shall expedite the processing of an administrative plot plan amendment ('Plot Plan Amendment') at the staff level to accomplish all CEQA-compliant site plan revisions and building changes necessary for the proposed Project . . . .
"(b) Upon the City's receipt of a complete and satisfactory environmental addendum and other information and submittal requirements as required in Aldi's Plot Plan Amendment application and as required by City policies, the City's Planning Division staff shall review and approve or disapprove the Plot Plan Amendment application within fifteen (15) business days."
The MOU also provided: "[T]he City has the complete and unfettered discretion to reject the Project . . . and other documents related to the Project . . . without explanation or cause."
ALDI commissioned an independent consulting firm, Applied Planning, to draft a proposed addendum to the Original EIR.
Applied Planning had drafted the Original EIR.
On August 9, 2013, ALDI submitted an application for an addendum to the Original EIR, along with its proposed addendum. On September 13, 2013, it submitted an application for an amended plot plan.
On November 22, 2013, the City's Community and Economic Development Department approved the final addendum (Addendum) and the amended plot plan. The Addendum described the Orion Project as designed "to support up to 150 future grocery stores within the Southern California region." The Addendum concluded that the approval of the Orion Project would not result in any significant adverse environmental effects, or any significantly more severe adverse environmental effects, than those already discussed in the EIR.
ALDI later clarified that this region comprised eight counties, and that it had not yet decided exactly how many stores to open or where those stores would be located.
On December 5, 2013, Attorney John G. McClendon, representing unnamed "citizens of the City of Moreno Valley," filed an appeal to the City Planning Commission. (See Moreno Valley Mun. Code, § 9.02.240(A)(1).) Thereafter, Attorney Anthony N. Kim, representing "CREED-21," wrote a letter to the Planning Commission supporting the appeal and opposing the Orion Project.
On January 16, 2014, after a public hearing, the Planning Commission denied the appeal and approved the amended plot plan.
Attorney McClendon requested a continuance of the public hearing, which was not granted. Accordingly, he did not attend. The Challengers grumble about the denial of a continuance, but they do not claim that it was improper or that it entitles them to reversal.
On January 29, 2014, Attorney McClendon, still representing "citizens of the City of Moreno Valley," appealed to the City Council. (See Moreno Valley Mun. Code, § 9.02.240(A)(2).) Later, he further identified his clients as "members of MVCU, an unincorporated association." Once again, Attorney Kim, representing CREED-21, wrote a letter to the City Council supporting the appeal and opposing the Orion Project.
On February 25, 2014, after a public hearing, the City Council denied the appeal and approved the amended plot plan and the Addendum.
II
PROCEDURAL BACKGROUND
CUMV and CREED-21 filed separate petitions for writ of mandate, naming the City and (in CUMV's case) the City Council as defendants and ALDI and AI California LLC as real parties in interest. (We will refer to the City, the City Council, ALDI, and AI California LLC collectively as the Defenders).
CUMV alleges that it is an unincorporated association, that its members include residents of the City, and that it was not formed until after the Orion Project was approved. It further alleges that it is "supported by" MVCU.
CREED-21 alleges that it is a "non-profit organization" and that "[a]t least one of its members resides in, or near, the City . . . ."
The parties stipulated to coordinate the two cases by having the same briefing and hearing schedule.
The Challengers argued that the Orion Project was substantially different from the Westridge Project, so as to trigger the need for an EIR. They also argued that the Addendum did not adequately analyze (1) urban decay impacts, (2) growth-inducing impacts, (3) air quality impacts, (4) biological impacts, and (5) hydrology and water quality impacts.
After hearing argument at a nonevidentiary hearing, the trial court took the matter under submission. Thereafter, it issued a ruling denying the petitions. It then entered judgments accordingly.
The Challengers filed timely notices of appeal. We consolidated the two appeals.
III
GENERAL CEQA PRINCIPLES
CEQA "embod[ies] California's strong public policy of protecting the environment. 'The basic purposes of CEQA are to: [¶] (1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.' [Citation.]" (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285-286.)
"'CEQA review procedures can be viewed as a "'three-tiered process.'" [Citation.] The first tier requires an agency to conduct a preliminary review to determine whether CEQA applies to a proposed project. [Citation.] If CEQA applies, the agency must proceed to the second tier of the process by conducting an initial study of the project. [Citation.] . . . If there is "no substantial evidence that the project or any of its aspects may cause a significant effect on the environment," the agency prepares a negative declaration. [Citation.] . . . Finally, if the initial study uncovers "substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment" [citation], the agency must proceed to the third tier of the review process and prepare a full EIR (environmental impact report). [Citation.]' [Citation.]" (Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 684.)
Here, the City completed all three tiers of this process when it approved the Westridge Project and the Original EIR. This brings us to what could be considered a fourth tier of the process: the decision on whether to prepare a subsequent or supplemental EIR (SEIR). "Public Resources Code section 21166 and Guidelines section 15162 mandate that once a public agency has prepared an EIR for a project, no further EIR is required unless either (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." (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 196, fns. omitted.)
All references to the "Guidelines" are to the "Guidelines for Implementation of the California Environmental Quality Act." (Cal. Code Regs., tit. 14, § 15000 et seq.)
The Guidelines authorize the preparation of "an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions . . . calling for preparation of a subsequent EIR have occurred." (Guidelines, § 15164(a).)
"An addendum to an EIR may . . . be prepared to evaluate changes to a project, changes in circumstances, or new information, and to document the agency's determination that a subsequent or supplemental EIR is not required. [Citation.]" (2 Kostka & Zischke, Practice under the Cal. Environmental Quality Act (2d ed. 2016) § 19.6, at p. 19-10.)
"CEQA and the CEQA Guidelines do not mandate any specific procedure for agencies to follow in determining whether a subsequent or supplemental EIR is required." (2 Kostka & Zischke, supra, § 19.41, at p. 19-44.) "Thus, public agencies may use a variety of vehicles for making such a decision. [Citations.] Any method should be legally sufficient as long as it includes a fact-based evaluation of the relevant factors . . . and a method for documenting the agency's evaluation and disposition of the issues." (Id. at p. 19-44.)
When a court reviews an agency decision not to require an initial EIR, the applicable standard of review is the stringent fair argument test. "If substantial evidence exists to support a fair argument that a significant environmental effect may result from the project, the agency is required to prepare an EIR, irrespective of whether there is other substantial evidence in the record to the contrary. [Citations.]" (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 576.)
By contrast, "'[w]hen a court reviews an agency decision . . . not to require a subsequent or supplemental EIR on a project, the traditional, deferential substantial evidence test applies. The court decides only whether the administrative record as a whole demonstrates substantial evidence to support the determination that the changes in the project or its circumstances were not so substantial as to require major modifications of the EIR.' [Citations.]" (Latinos Unidos de Napa v. City of Napa, supra, 221 Cal.App.4th at pp. 200-201; accord, Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944 ["These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence."].)
The question of whether a project under consideration is a change to an earlier project, requiring an SEIR, or an entirely new project, requiring an EIR, is likewise subject to substantial evidence review. (Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., supra, 1 Cal.5th at pp. 952-953.) However, the Challengers never actually argue that the Orion Project was a new project, rather than a substantial change to the Westridge Project.
"'The burden is on the appellant to show there is no substantial evidence to support the findings of the agency. [Citation.]' [Citation.]" (Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 798.)
"'[A] court should tread with extraordinary care before reversing a local agency's determination about the environmental impact of changes to a project.' [Citation.]" (Latinos Unidos de Napa v. City of Napa, supra, 221 Cal.App.4th at p. 202.) "'[Public Resources Code s]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [citation], and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.' [Citation.]" (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 55.)
Thus, we do not ask whether there is substantial evidence that the Project will have no significant adverse environmental impacts. The Original EIR found that the Westridge Project would have some significant adverse environmental impacts. Moreover, to the extent that it found that the Westridge Project would not have a given adverse environmental impact — for example, that it would have no significant adverse impact on biological resources — that finding was not timely challenged and has since become final. Accordingly, we ask only whether there is substantial evidence that the changes that the Orion Project makes to the Westridge Project will have no significant adverse environmental impacts that are new or more severe. (Guidelines, § 15162(a); see, e.g., Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1402-1403.)
IV
SIGNIFICANCE OF THE MOU
The Challengers contend that the City violated CEQA by agreeing in the MOU to process an addendum, at the staff level, before ALDI had yet filed an application.
A. Exhaustion of Administrative Remedies.
Preliminarily, the Defenders respond that the Challengers failed to show exhaustion of administrative remedies regarding this issue.
"Before a petitioner can assert a CEQA violation against an agency in court, someone — not necessarily the petitioner — must raise the same issue before the agency in the administrative proceedings. [Citation.]" (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 711.)
Public Resources Code section 21177, subdivision (a) provides: "An action or proceeding shall not be brought pursuant to [CEQA] unless the alleged grounds for noncompliance . . . were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination."
Public Resources Code section 21177, subdivision (e) then provides: "This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law."
"' . . . "[T]he 'exact issue' must have been presented to the administrative agency . . . ." [Citation.] 'While "'less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding' because, ' . . . parties in such proceedings generally are not represented by counsel . . .' [citation]" [citation], . . . "'[t]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.'"' [Citation.]" (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527.)
"'"The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citation.]" [Citation.] An appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies.' [Citation.]" (Citizens for Responsible Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at p. 527.)
In this case, CEQA did not require either a public comment period or a public hearing. (Guidelines, § 15164, subd. (c) ["An addendum need not be circulated for public review . . . ."].) However, when MVCU appealed, the Planning Commission noticed and held a public hearing; when MVCU appealed again, the City Council noticed and held a second public hearing. Even though these were not required by CEQA, they provided an "other opportunity" to raise objections; hence, the exhaustion requirement applies. (Mani Brothers Real Estate Group v. City of Los Angeles, supra, 153 Cal.App.4th at p. 1395.)
MVCU's notice of appeal to the City Council specified only one issue: That "due to the unique nature of this Project and its environmental impacts, it cannot be approved with merely an addendum . . . ."
Under the Moreno Valley Municipal Code, in an appeal to the City Council, "the appellant shall be limited to a presentation on the specific grounds of appeal and matters set forth in his or her notice of appeal . . . ." (Moreno Valley Mun. Code, § 2.04.130(B).) Thus, it would appear that there was a failure to exhaust all other grounds for a challenge to the Addendum, including that the MOU improperly committed the City to proceed by way of an addendum. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 591-594.) However, the Defenders have not so argued in this appeal.
The Challengers point to the following comment by one Thomas Thornsley: "Utilizing the Memorandum of Understanding to forgo what would most likely have required reconsideration by the Planning Commission fails to keep with the City's new commitment to cooperation and transparency especially as it related to development." We note that, at the public hearing before the Planning Commission, Thornsley appeared and stated again: "I guess the City Council approved an MOU; gave them the permission to give it to Staff to administratively handle it . . . ." However, Thornsley never claimed that this procedure violated CEQA. Thus, his comments were insufficient to alert the City to the Challengers' present claim of a CEQA violation based on the MOU.
The Challengers also argue that they had no opportunity to raise their present contention because the City "never provided any notice to the public regarding the MOU"; hence, they were unaware of the MOU until they received the administrative record. (Bolding omitted.) This argument fails for two reasons.
First, we know of no authority for the proposition that the City had to provide public notice of the MOU, nor for the proposition that the Challengers' ignorance of the MOU is an excuse. Certainly others were aware of the MOU, as shown by Thornsley's comments. Moreover, under the exhaustion doctrine as applied under CEQA, "a member of the group seeking judicial relief need not have personally raised the specific CEQA grounds being contested, so long as someone else presented the objections to the agency." (Preserve Poway v. City of Poway, supra, 245 Cal.App.4th at pp. 573-574.) Thus, assuming that exhaustion turns on knowledge of the MOU at all, it would seem sufficient that other members of the public had such knowledge.
As already mentioned, Thornsley referred to the MOU in his remarks at the public hearing before the Planning Commission. Accordingly, if only McClendon had attended that hearing, he and his clients would have known about the MOU.
Second, there is no evidence that the Challengers were, in fact, unaware of the MOU. The Challengers never raised their present contention in the trial court. Accordingly, the Defenders did not have an opportunity to assert lack of exhaustion, and the Challengers were not called on to prove their lack of knowledge. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575 [in a traditional mandate proceeding, extra-record evidence may be admissible when relevant to the petitioner's standing, to an affirmative defense, or to procedural unfairness].)
The Defenders contend that the Challengers forfeited their present argument by failing to raise it in the trial court. In light of our holding that the argument must fail in any event due to lack of exhaustion, we need not address this contention.
We therefore conclude that the Challengers have not demonstrated exhaustion of administrative remedies.
B. Merits.
Separately and alternatively, we also reject this contention on the merits.
The Challengers argue that the MOU committed the City to proceed by way of an addendum, and therefore not to require an EIR. Not so. It is important to remember that it was ALDI — and not the City — that hired an environmental consultant to draft a proposed addendum. Moreover, it was that environmental consultant — and not the City — that ordered up supporting documentation, such as a traffic study and an air quality study. ALDI then submitted its proposed addendum, along with its application for an addendum, to the City. The City reviewed ALDI's proposed addendum. As the MOU plainly stated, City planning staff could approve or disapprove the addendum. Thus, the City remained free to determine that an EIR was required. To put it another way, the City agreed to consider an addendum; it did not agree to approve that (or any other) addendum.
The Challengers state that, even before ALDI had yet submitted its draft addendum, a City planning official "'approved acceptance of the EIR Addendum.'"
This is a misleadingly truncated quotation from a City email. It stated that the official had "approved acceptance of the EIR Addendum, application and initial fee of $500 with the understanding that the final fee will be higher and that no approvals will be granted until the Amended Plot Plan is submitted as well." In other words, he approved acceptance of ALDI's application for an addendum, not of the Addendum itself.
In a somewhat convoluted argument, the Challengers point out that an agency's "decisionmaking body" has the exclusive authority to approve an EIR or a negative declaration. (Guidelines, § 15025, subd. (b)(1).) They recognize that this requirement does not extend to an addendum. However, they argue that, by committing to process an addendum at the staff level, the City sought to "get around" this requirement and thereby "avoid public scrutiny."
This argument, however, adds nothing to the Challengers' basic claim that the City improperly committed itself to proceed by way of an addendum. At most, it suggests that the City had a nefarious motive for doing so. However, as we have already stated, the City did not commit itself to approving an addendum. It reserved the option to require an EIR, along with the full panoply of public scrutiny that an EIR would demand.
Finally, the Challengers argue that the City violated CEQA by starting to prepare the Addendum before ALDI submitted its plot plan application. They rely on section 15060, subdivision (b) of the Guidelines, which states, as relevant here: "[T]he lead agency shall begin the formal environmental evaluation of the project after accepting an application as complete and determining that the project is subject to CEQA."
According to the leading CEQA treatise, however: "Public agencies sometimes begin their CEQA review before an application has been filed. Determining whether the project is subject to CEQA and whether it is exempt are actions that are part of the preliminary review (see 14 Cal Code Regs §§ 15060-15061) but are also actions that can be, and sometimes are, performed before an application has been filed. CEQA appears to permit this approach by providing in [section] 21003 that the legislature intends that agencies conduct CEQA procedures concurrently with other procedures to the maximum extent feasible." (1 Kostka & Zischke, supra, § 2.22, at p. 2-25.)
In any event, Guidelines section 15060, subdivision (b) refers to "the formal environmental evaluation" of a project. (Italics added.) As far as the administrative record reveals, between June 18, 2013, when the MOU was signed, and August 9, 2013, when ALDI submitted its application for an addendum, the City did not conduct any formal environmental evaluation of the Orion Project. As already noted, a proposed addendum was prepared by ALDI and its environmental consultant. ALDI also solicited comments from stakeholders such as fire and utility officials. None of this, however, constituted a formal environmental evaluation.
Between August 9, 2013, when ALDI submitted its application for an addendum, and September 13, 2013, when ALDI submitted its application for an amended plot plan, the City became somewhat more involved with the project. However, we need not decide whether its activities during this period rose to the level of a formal environmental evaluation. Even assuming they did, ALDI had already submitted an application — namely, its application for an addendum. That was sufficient to satisfy Guidelines section 15060, subdivision (b).
The Challengers assert that Jeffrey Bradshaw, the City staff member in charge of the Orion Project, "repeatedly misled" "members of the public . . . about the status of that project." Once again, however (see fn. 4, ante), they do not claim that they are entitled to reversal on this ground.
V
USE OF AN INITIAL STUDY CHECKLIST
The Challengers contend that the City "compounded its violation of CEQA" by using a checklist designed for an initial study. (Capitalization altered.)
A. Additional Factual Background.
Appendix G of the Guidelines provides a sample environmental checklist for use in an initial study. In preparing the Addendum, the City used a similar checklist. However, instead of asking whether the Project would have impacts that were "potentially significant," the checklist was modified to ask whether there was a substantial change in the Project requiring major revisions, a substantial change in circumstances requiring major revisions, or new information showing greater significant impacts. The Addendum then incorporated the checklist.
B. Exhaustion of Administrative Remedies.
Once again (see part IV.A, ante), the Defenders respond that the Challengers failed to show exhaustion of administrative remedies regarding this issue. We agree. The Challengers have not cited, nor have we found, any instance in which this issue was raised in the administrative proceedings. We therefore conclude that it has not been preserved.
C. Merits.
And again, separately and alternatively, we also reject this contention on the merits.
The leading CEQA treatise states: "Some public agencies have used the initial study checklist form in CEQA Guidelines Appendix G to analyze whether a subsequent EIR or a supplemental EIR should be required. [Citation.] . . . .
"An initial study is intended to be used by the lead agency to develop information relating to whether to prepare an EIR or a negative declaration after the agency conducts a preliminary review of a proposed project. [Citation.] Accordingly, the initial study checklist form in CEQA Guidelines Appendix G is designed to enable the lead agency to determine whether any part of a project might have a significant effect on the environment [citation] but not to evaluate issues concerning the need for a subsequent or supplemental EIR (i.e., the effect of changes that occurred or new information that surfaced after the environmental review was completed).
"The initial study checklist form can be used to assess the impacts of changes in the project or in its surrounding circumstances, but the form is not suited for a review of whether those impacts were covered by the previous environmental document and whether substantial revisions to the previous document may be necessary to make it adequate. [Citations.] Furthermore, the initial study form is not suited to evaluation of new information that might trigger the need for further environmental review, given the variety of factors that must be considered but that do not appear in the form. [Citation.]
"PRACTICE TIP: An initial study checklist form should not be used to make a determination under [Public Resources Code section] 21166 and 14 [California Code of Regulations section] 15162 unless the initial study form is specifically modified for that purpose." (2 Kostka & Zischke, supra, § 19.44, at pp. 19-47 - 19-48, italics added.)
Here, the City did, in fact, modify the checklist form so as to make it applicable to the question of whether a further EIR was required. The Challengers do not suggest any way in which the modification was inadequate for this purpose.
The Challengers' only criticism of the checklist form is that it did not ask specifically about urban decay. However, the Guidelines checklist likewise does not ask specifically about urban decay, even though urban decay is just as relevant to an initial study as it is to an addendum. The checklist does include several catchall questions. One asks, in part, "Does the project have the potential to degrade the quality of the environment . . . ?" Another asks, "Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly?" Thus, the checklist did enable the City to consider urban decay.
VI
PIECEMEALING
The Challengers contend that the City improperly "piecemealed" the Project because it did not treat the stores that the Project was to serve as part of the Project.
A. Exhaustion.
One more time, the Defenders respond that the Challengers failed to show exhaustion of administrative remedies regarding this issue.
In a letter to the City Council, however, MVCU asserted that the fact that "the Project will facilitate the development of up to 150 new grocery stores throughout southern California . . . necessitated further analysis under CEQA and the Guidelines." This was sufficient to preserve the Challengers' present contention. (But see fn. 8, ante.)
B. Merits.
"[T]he term 'project' as used for CEQA purposes is defined broadly as '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 . . . .' [Citation.]" (Paulek v. California Department of Water Resources (2014) 231 Cal.App.4th 35, 45.)
"It is well established that '"CEQA forbids 'piecemeal' review of the significant environmental impacts of a project."' [Citation.] Rather, CEQA mandates 'that environmental considerations do not become submerged by chopping a large project into many little ones — each with a minimal potential impact on the environment — which cumulatively may have disastrous consequences.' [Citation.]" (Paulek v. California Department of Water Resources, supra, 231 Cal.App.4th at p. 45.)
"Whether a project has received improper piecemeal review is a question of law that we review independently. [Citation.]" (Paulek v. California Department of Water Resources, supra, 231 Cal.App.4th at p. 46.)
The grandmother of all piecemealing cases is Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376. There, a university proposed to relocate its biomedical research facilities to a building in a residential neighborhood. (Id. at p. 389.) It proposed to use 100,000 square feet initially, and to expand to an additional 254,000 square feet within a few years. (Id. at p. 393.) The university regents adopted an EIR for this project. (Id. at p. 389.) However, the EIR did not discuss the additional environmental effects of the expansion. (Id. at p. 393.)
The Supreme Court held that the EIR was inadequate because it failed to discuss the expansion. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 393-399.) It stated: "[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 court agreed "that 'where 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.' [Citation.]" (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 395.) It indicated that a key consideration was "whether the public agency had 'sufficient reliable data to permit preparation of a meaningful and accurate report . . . .' [Citation.]" (Id. at p. 396.)
The regents argued that they had not yet decided how they would use the additional space. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 394, 396.) The Supreme Court, however, found "telling evidence that the University, by the time it prepared the EIR, had either made decisions or formulated reasonably definite proposals as to future uses of the building." (Id. at p. 397.) It had admitted "that it intend[ed] to use the facility for the School of Pharmacy's basic science group and [the] Office of the Dean." (Id. at p. 396.) It had also stated that it intended to use the space for biomedical research. (Id. at p. 397.) It had even estimated the number of persons who would use the building, both before and after the expansion. (Id. at p. 396.)
The court cautioned: "We do not require prophecy. The Regents are not required by our decision to commit themselves to a particular use or to predict precisely what the environmental effects, if any, of future activity will be. Nor do we require discussion in the EIR of specific future action that is merely contemplated or a gleam in a planner's eye." (Id. at p. 398.)
Here, the fact that ALDI intended the Project to support up to 150 grocery stores did not require any additional environmental analysis because the City did not have sufficient reliable data to say any more than was already in the Original EIR. First, the City did not know how many stores were likely to be involved. "Up to 150" means any number from one to 150. Second, the City did not know where any of those stores were going to be. According to the Challengers, "Common sense tells us that a company of Aldi's scale, with its global reach, would not dump millions of dollars into a distribution warehouse without any idea whatsoever of the locations that the warehouse will serve." However, there was no evidence of this. To the contrary, an ALDI spokesman told the City that: "As far as store rollout, we don't have any specifics on that. We don't know where those will go." Third, the City did not know to what extent ALDI was going to build new stores, as opposed to buying or renting existing vacant stores, even though these would have different environmental effects. "CEQA does not demand the impossible; it simply requires public agencies to consider the reasonably foreseeable environmental effects of their actions." (California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1231, italics added.)
The Challengers point to a "Project Employee Shift & Truck Delivery Breakdown Worksheet" done in connection with the Addendum's analysis of traffic impacts. It stated, "Initially the [Project] will support approximately 80 stores. Future facility expansion is planned to support approximately 150 stores." It then used these numbers to calculate the number of employees and number of truck deliveries per shift.
As these are only approximations, done for the purpose of calculating traffic impacts, we do not view them as pinning down the actual number of stores at any given time. If anything, they demonstrate the uncertainty of the actual number of stores.
As the Defenders note, National Parks & Conservation Assn. v. County of Riverside (1996) 42 Cal.App.4th 1505 supports their position. There, a county approved an EIR for a landfill project. (Id. at pp. 1508-1509.) All waste sent to the landfill would be processed beforehand by materials recovery facilities (MRF's). (Id. at p. 1510.) The EIR stated that "since the exact location of the MRF's are unknown, 'specific land use conditions and impacts of these facilities are not discussed, although considerations would include noise, dust, odors, traffic and other impacts.'" (Id. at pp. 1517-1518.)
A project opponent argued that the EIR was inadequate because it did not treat the MRFs as part of the project and did not analyze their environmental impacts. (National Parks & Conservation Assn. v. County of Riverside, supra, 42 Cal.App.4th at pp. 1512, 1518.) The appellate court disagreed. (Id. at pp. 1517-1520.) It cited No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223 as authority for the following test: "[D]iscussion of a support facility . . . is not required in an EIR for the project the facility is to serve if: (1) Obtaining more detailed useful information is not meaningfully possible at the time when the EIR for the project is prepared, and (2) it is not necessary to have such additional information at an earlier stage in determining whether or not to proceed with the project. [Citation.]" (Id. at p. 1518.)
"Applying this test, first, it is difficult to see how much more detailed, useful information about these MRF's can be supplied at the present when it is not known where they will be situated and who will be operating them." (Ibid.)
"Secondly, . . . it is not necessary to have such additional information at an earlier stage in determining intelligently whether to proceed with this project. There are adequate environmental safeguards in the approach taken here, because a jurisdiction desiring to send waste to the landfill project will have to conduct environmental review before processing that waste, either through MRF's or through other forms of solid waste transfer and processing stations. [Citation.]" (Id. at p. 1520.)
The court agreed that: "'Applicable land use approvals are within the responsibility and jurisdiction of other public agencies (agencies where [MRF's] ultimately will be located). Since their exact locations to serve the project are unknown at this time, specific existing land use conditions and specific impacts associated with the potential siting of transfer stations cannot be and are not addressed. Therefore, any potential impacts cannot be evaluated at this time. The siting of each facility will be the subject of land use, zoning, and environmental review and approvals by the affected local agencies. Undertaking any such analysis at present would involve speculation and conjecture.'" (National Parks & Conservation Assn. v. County of Riverside, supra, 42 Cal.App.4th at pp. 1518-1519.)
Here, similarly, it was not meaningfully possible to obtain more detailed useful information about an unknown number of ALDI stores in unknown locations. Nor was it necessary to have this information in deciding whether or not to proceed with the Project, because the ALDI stores would be subject to all applicable land use, zoning, and environmental review and approvals if and when they became concrete proposals. Until then, any environmental analysis could only be "speculation and conjecture."
The Challengers argue that National Parks is distinguishable, because there the MRF's were going to be built regardless of whether the landfill was built. The court itself, however, indicated that this fact was irrelevant to its analysis. First, it derived its test from No Oil, Inc. v. City of Los Angeles, supra, 196 Cal.App.3d 223, in which the issue was whether the EIR for an oil-drilling project had to discuss the pipeline that would transport the oil. (National Parks & Conservation Assn. v. County of Riverside, supra, 42 Cal.App.4th at pp. 1515-1516.) It then indicated that No Oil was analogous, because there the pipeline was a "support facility" for the oil-drilling project, and "[t]he MRF's are in some respects a support facility for the landfill, although, as the trial court noted, similar facilities will have to be located somewhere, whether or not this project is completed, unlike the oil pipeline which would not be constructed absent approval of the drilling facility in No Oil . . . ." (National Parks & Conservation Assn. v. County of Riverside, supra, at p. 1518.) Thus, it indicated that No Oil was controlling — both on the facts in No Oil (if the oil-drilling project was not approved, there would be no pipeline) and the facts in National Parks (even if the landfill was not approved, there would still be MRF's). Here, the facts are closer to those in No Oil — if the Orion Project is not approved, there will be no new stores (unless, of course, ALDI builds or buys a distribution facility elsewhere). Nevertheless, National Parks is controlling.
The Challengers go so far as to state that National Parks "found [that the] omission of the MRF's from the EIR was proper because [the MRF's] would be built regardless . . . of whether the County built the landfill." (Italics added.) That is not accurate. The court found that the omission was proper in spite of the fact that the MRF's would be built regardless of whether the county built the landfill.
As another court recently summarized the applicable law, "where 'an EIR cannot provide meaningful information about a speculative future project, deferral of an environmental assessment does not violate CEQA. [Citations.]' [Citation.]" (Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1059.) That is precisely the situation here. We therefore conclude that the City did not engage in improper piecemealing.
VII
PARTICULAR IMPACTS
A. The Adequacy of the Addendum.
The Challengers contend that "the Addendum failed as an informational document." They also argue that the Addendum's failure to discuss a given type of impact — or the failure to discuss it "adequately" — is a violation of CEQA.
"The EIR is the heart of CEQA . . . . [Citation.]" (In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1162.) "[T]he EIR's role as an informational document" is "key." (Neighbors for Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439, 453.) "'The purpose of an environmental impact report is to provide public agencies and the public in general with detailed information . . . .' [Citations.]" (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 391, fn. omitted.)
By contrast, an addendum is not required to discuss anything in particular. "A brief explanation of the decision not to prepare a subsequent EIR . . . should be included in an addendum to an EIR, the lead agency's required findings on the project, or elsewhere in the record." (Guidelines, § 15164(e), italics added.) The agency itself must "consider" the addendum. (Guidelines, § 15164(d).) However, "[a]n addendum need not be circulated for public review . . . ." (Guidelines, § 15164(c).) An agency's conclusion that a further EIR is not required must be supported by substantial evidence — but not necessarily in the addendum, merely in the administrative record as a whole. (Latinos Unidos de Napa v. City of Napa, supra, 221 Cal.App.4th at pp. 200-201.)
For example, in support of its contention that the Addendum had to discuss urban decay, the Challengers cite Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1208. That case, however, involved the review of an EIR, not an addendum. (See ibid.)
The Challengers also cite section 15144 of the Guidelines, which provides: "Drafting an EIR or preparing a Negative Declaration necessarily involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can." (Italics added.) The Challengers quote only the italicized portion. In context, however, it is clear that the italicized portion applies only to an EIR (or a negative declaration), not to an addendum.
Accordingly, we decline the Challengers' invitation to evaluate the adequacy or sufficiency of the Addendum standing alone.
B. Urban Decay.
The Challengers contend that an EIR was needed to analyze the Project's urban decay impacts.
1. Additional factual background.
In conjunction with its appeal to the City Council, MVCU submitted a memorandum by Dr. Philip G. King. Dr. King is a professor of economics at San Francisco State University. He had identified nine grocery store chains — with a total of 1,044 stores in Southern California — that would compete with ALDI. In his opinion, 232 of these stores were "at risk of urban decay." He listed stores as "at risk" if they met any one of four statistical criteria: (1) they were in a city with one of the three lowest median home sales prices in their county, (2) they were in a city with one of the three highest property crime rates in their county, (3) they were in an active State of California Enterprise Zone, or (4) they were in a group of Albertson's stores that were already scheduled to be closed in January or February 2014. Dr. King had also viewed Google Street View images of at-risk stores and had identified a subset of 30 stores that were at high risk based on their visible characteristics.
These were identified by using Trulia.com. Specifically, the cites were Lancaster and Palmdale in Los Angeles County; Aliso Viejo, Laguna Hills, Laguna Woods, and Santa Ana in Orange County; and Rialto in San Bernardino County. (It is not clear why there were sometimes more or less than three per county.)
These were identified through the United States Department of Justice. Specifically, the cites were Commerce and Signal Hill in Los Angeles County; Brea, Costa Mesa, and Westminster in Orange County; Hemet, Palm Desert, and Palm Springs in Riverside County; Montclair, Redlands, and San Bernardino in San Bernardino County; and Escondido, La Mesa, and National City in San Diego County.
Dr. King acknowledged, however, that "urban decay is very much a local concern i[n] specific neighborhoods. The overall market for commercial real estate in southern California is quite strong . . . ."
2. Discussion.
"[I]n appropriate circumstances CEQA requires urban decay or deterioration to be considered as an indirect environmental effect of a proposed project." (Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at p. 1205.)
"' . . . Economic and social impacts of proposed projects . . . are outside CEQA's purview. When there is evidence, however, that economic and social effects caused by a project . . . could result in a reasonably foreseeable indirect environmental impact, such as urban decay or deterioration, then the CEQA lead agency is obligated to assess this indirect environmental impact. [Citations.] An impact "which is speculative or unlikely to occur is not reasonably foreseeable." [Citation.]' [Citation.]" (Joshua Tree Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at p. 684.)
"CEQA is not a weapon to be deployed against all possible development ills. For example, although CEQA requires public agencies to evaluate the possible negative environmental effects of constructing big-box retail stores (e.g., air pollution from traffic, noise and light pollution, destruction of open space), the fact that they may drive smaller retailers out of business is not an effect covered by CEQA. [Citation.] Only if the loss of businesses affects the physical environment — for example, by causing or increasing urban decay — will CEQA be engaged. [Citations.]" (South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1614.)
Here, the City could reasonably conclude that any urban decay effects were too speculative to be the subject of reasoned analysis. As we discussed in part VI.B, ante, there was no way of knowing how many stores ALDI would open, where the stores would be, or whether they would be in new or existing buildings.
The Challengers understandably rely on the opinions of Dr. King. Just as understandably, however, the City could dismiss those opinions as not credible. "'[E]xpert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.' [Citation.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.) "A lead agency need not accept expert testimony that lacks an adequate factual foundation. [Citations.]" (1 Kostka & Zischke, supra, § 6.41 at p. 6-45.) "An agency also need not accept expert opinion that lacks specificity or fails to adequately explain why the project might cause a significant impact. [Citations.]" (Id. at p. 646.)
Dr. King admitted that overall, the Southern California commercial real estate market was "quite strong," and that urban decay was a problem only in "specific neighborhoods." However, he had no way of knowing whether ALDI would choose to open stores in those neighborhoods. Moreover, of the 1,044 grocery stores that he considered to be "primary competitors" of ALDI, only 30 were at high risk for urban decay. As he also admitted, ALDI was currently "expanding into relatively affluent areas . . . ." Thus, the likelihood that ALDI would open a store that could drive a competing store out of business was not quantifiable; the City could reasonably view it as speculative.
In addition, as we discussed recently in Joshua Tree Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at page 684, there are many links in the causal chain between competition and urban decay. Underlying Dr. King's opinion are several unspoken assumptions — including that an ALDI is likely to drive a nearby at-risk store out of business, and that an at-risk store going out of business is likely to lead to boarded-up windows, graffiti, homeless encampments, and similar physical changes that constitute urban decay for purposes of CEQA. However, he offered no empirical data to support these assumptions. For example, he did not offer any data showing that any ALDI store had ever driven any other store out of business. Similarly, Dr. King classified a store as "at risk" if it was in a city with low home prices, a city with high property crime, or an Enterprise Zone. However, he did not explain how these classifications increased the risk of causing urban decay.
He also included Albertson's stores that were already scheduled to close. However, opening an ALDI near them could hardly drive them out of business or cause urban decay.
The Challengers claim that Dr. King "us[ed] powerful mapping software developed by Google to identify and develop a database of 1,044 grocery stores in Southern California that would be primary competitors of ALDI." No, he did not. He simply identified the nine chains that were most likely to compete with ALDI; then he listed all 1,044 stores in southern California that belonged to those nine chains. Using the statistical criteria already stated, he identified a subset of 232 stores that he considered to be at risk. And finally, he viewed a further subset of those stores on Google Street View to see if there were other apparent indicia of risk, such as "[e]vidence of vacancy" or an "[a]ging plaza." We readily admit that Google Street View is a technological marvel. However, Dr. King merely used it as a substitute for shoe leather.
The Challengers also claim that Dr. King "extrapolated likely locations for further ALDI stores based on historical trends and existing business practices." Again, no, he did not. He did not even purport to predict where ALDI would open stores.
We need not decide whether the City could have found that Dr. King's opinions were credible. We merely hold that it was not required to find that they were credible. Leaving those opinions aside, there was substantial evidence that the urban decay impacts of the Project, if any, were too speculative to be susceptible to meaningful analysis at this stage.
C. Growth-Inducing Impacts.
The Challengers contend that an EIR was needed to analyze the Project's growth-inducing impacts.
1. Additional factual background.
Regarding growth-inducing impacts, the Original EIR stated: "The Project's potential economic benefits could indirectly result in employment growth in the region. This growth, in combination with other anticipated employment growth in the region, could indirectly result in population growth and an increased demand for housing. Such growth has a variety of effects on the physical environment, including but not limited to[] effects on air quality, ambient noise levels, traffic impacts, and water quality. . . . [T]he Project, in combination with other planned or anticipated projects in the area, would contribute to employment and population growth which, regionally, are expected to be substantial."
The Addendum did not specifically discuss growth-inducing impacts.
2. Discussion.
An EIR must discuss the growth-inducing impacts of the proposed project. (Guidelines, § 15126(d).) Here, however, the original EIR did discuss growth-inducing impacts. While the Addendum did not specifically discuss growth-inducing impacts, it was not required to do so. (See part VII.A, ante.)
The only issue is whether there is substantial evidence in the administrative record as a whole that the changes to the Project would have no new or more severe growth-inducing impacts. (See part III, ante.) The Challengers point to the fact that the Project would serve up to 150 grocery stores. However, the Westridge Project, like the Orion Project, featured a distribution warehouse. Moreover, the Westridge Project had 173 loading docks; the Orion Project reduced this to 134 loading docks. The Westridge Project was going to operate 24 hours a day; the Orion Project was going to operate 17 hours a day. While the number and the types of businesses that the Westridge Project would serve were unknown, it was capable of sending more goods to more locations. It is fairly inferable that the Orion Project would not have any new or more severe growth-inducing effects.
The analysis of growth-inducing effects in the EIR was necessarily somewhat vague. The Original EIR acknowledged that the Westridge Project could cause employment growth, population growth, and greater demand for housing, which in turn could have adverse impacts on air quality, noise levels, traffic, and water quality. It did not attempt to quantify these impacts or to specify where they would occur; logically, it would seem impossible to do so. We do not see how the added fact that the Project would serve up to 150 grocery stores would indicate that it would have any new or more severe growth-inducing impacts. Again, the fact that the Westridge Project could distribute more goods, albeit to other types of businesses, would seem to indicate that the Orion Project would induce less growth.
The Challengers assert that the Westridge Project was "intended to 'serve the needs of local businesses'" — as opposed to the Orion Project, which was intended to serve all of Southern California. Similarly, they assert that the Westridge Project was intended to "serv[e] existing businesses" — again, as opposed to the Orion Project, which was intended to serve new stores. However, the Challengers do not supply any citation to the record to support these assertions. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)
In their reply brief, the Challengers attempt to remedy this deficiency by providing a handful of citations. In our view, however, they still do not support the Challengers' claims.
Even assuming reasonable minds could differ on the point, there was at least substantial evidence that the Orion Project would not have any new or more severe growth-inducing effects.
D. Air Quality Impacts.
The Challengers contend that an EIR was needed to analyze the Project's air quality impacts.
The Addendum discussed two types of emissions: construction-source emissions and operational-source emissions. With regard to construction-source emissions, it concluded, based on the smaller size of the Orion Project, that construction-source emissions would be the same or less. With regard to operational-source emissions, based on an updated air quality assessment, it concluded that the Orion Project would produce less of every relevant pollutant — volatile organic compounds, nitrogen oxides, carbon monoxide, sulfur oxides particulate matter, and greenhouse gases — than the Westridge Project.
The Challengers argue that the Orion Project is a different use and a more intensive use; they ask us to conclude that, by definition, it must have more severe air quality impacts. However, they do not discuss the 288-page updated air quality assessment, which reported that "[t]he proposed changes to the Project would result in a decrease in emissions . . . ." (Italics added.) They do not compare it to the air quality assessment in the Original EIR. Thus, they fail to convince us that its conclusion is unsupported.
When the substantial evidence standard of review applies, "an appellant must set forth in its brief all the material evidence on the point, not merely its own evidence. [Citation.] A failure to do so is deemed a concession that the evidence supports the findings. [Citation.] The reason for this is that 'if the appellants fail to present us with all the relevant evidence, then the appellants cannot carry their burden of showing the evidence was insufficient to support the agency's decision because support for that decision may lie in the evidence the appellants ignore.' [Citation.] This failure to present all relevant evidence on the point 'is fatal.' [Citation.] 'A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.' [Citation.]" (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 112-113.)
The Challengers argue that emissions from vehicle trips and electricity (including the electricity used for refrigeration) necessarily must go up. However, the figures in the Addendum are supported by the figures in the air quality assessment. "[A]n appellate court may not reweigh the evidence and may not reject evidence as lacking credibility unless it is physically impossible [citation] or inherently implausible [citation]." (State Farm Fire & Casualty Co. v. Jioras (1994) 24 Cal.App.4th 1619, 1626.) The Challengers point to no evidence that the air quality assessment was incorrect. Hence, it constituted substantial evidence.
The Challengers also argue that adding a six-acre refrigerated storage area necessarily must increase emissions, because "refrigerants and refrigerant leakage are a significant source of [greenhouse gas] emissions." The air quality assessment, however, found that greenhouse gases due to refrigerant leakage would go down from 401.75 to 343.10 (in metric tons of CO2 equivalents per year). Again, the Challengers point to no evidence that this was impossible.
Moreover, the air quality assessment reported that greenhouse gas emissions from all sources would be reduced by 7,834.83. Thus, refrigerant leakage was a very minor contributor to overall greenhouse gas emissions. Even if it not only did not go down, but went up tenfold, it would still be massively outweighed by other reductions.
In sum, then, the Challengers have not shown that the Project's air quality impacts required an SEIR.
E. Biological Impacts.
The Challengers contend that an EIR was needed to analyze the Project's impacts on biological resources.
1. Additional Factual Background.
The Original EIR was based on a biological report by Harmsworth and Associates. According to the report, no burrowing owls and no signs of burrowing owls were found at the site. However, "[t]he site does provide suitable burrowing owl habitat. . . . Due to the presence of suitable burrows and suitable foraging areas, burrowing owls could occur onsite."
The EIR therefore concluded that "burrowing owls could occur within the Project area." As a mitigation measure, it required that a pre-construction burrowing owl survey be conducted and that any owls found to be present be relocated pursuant to California Department of Fish and Game protocols. It determined that, with mitigation, the Westridge Project would not have a significant impact on burrowing owls.
According to the Addendum, "The conclusions of the . . . biological report were verified by Harmsworth and Associates during a field review on November 7, 2013." The Addendum concluded that the Orion Project would not have any new or more severe biological impacts.
The 2013 report by Harmsworth and Associates was attached to the Addendum. It stated: "The current survey found no significant difference with the site conditions compared to the past reports." "No nesting birds were detected, as expected, since November is outside the bird nesting season. [¶] No burrowing owl . . . or their sign were detected during the site survey; however, potential owl burrows were present onsite." (Italics added.)
2. Discussion.
The Challengers argue that "the Addendum's conclusion that the Orion Project's impact on biological resources is less than significant is not supported by substantial evidence because a proper biological study requires . . . that [site] surveys be conducted during nesting season . . . ."
This argument invokes an incorrect standard of review. As discussed in part III, ante, the Challengers must identify a change to the project; then they must show that the change could have a new or more severe adverse impact. The Challengers do not point to any such change. The project was being built at the same site; indeed, it would have a smaller footprint. Thus, even assuming you could not walk across the Project without stepping on a burrowing owl, it does not appear that there would be any new or more severe adverse biological impact.
Had the 2013 report found that burrowing owls were all over the site, arguably that would be new information requiring a further EIR. The Challengers' complaint, however, is that the 2013 report contained less information than the earlier report.
Separately and alternatively, there was substantial evidence that the Orion Project would not have any significant adverse impact on burrowing owls. The original EIR found that burrowing owls could occur at the project site; hence, it required mitigation, which it found would reduce any adverse impact to a less than significant level. Likewise, although the field survey was conducted outside the breeding season, it did find potential owl burrows at the site. The Addendum could reasonably conclude that the mitigation measures already required by the original EIR were sufficient to reduce any impact on burrowing owls to less than significant levels.
F. Hydrology and Water Quality Impacts.
The Challengers contend that an EIR was needed to analyze the Project's hydrology and water quality impacts.
1. Additional factual background.
The Westridge Project featured two bioretention basins, bisected by a driveway, along with one detention basin. The Original EIR found that "[t]hese basins . . . would reduce storm water discharge from the site to levels equivalent to pre-development conditions . . . ."
With regard to water quality, the Original EIR noted that, as a matter of federal and local water quality regulation, the project would be required to have a Water Quality Management Plan (WQMP), which in turn would be required to include Best Management Practices (BMPs) that would "prevent or minimize potential storm water pollutant discharges over the life of the Project." It concluded that, as a result, "the potential for post-construction aspects of the Project to . . . substantially degrade water quality is considered less than significant."
Although BMP stands for Best Management Practices, that does not adequately convey its meaning. Rather, almost any step that can be taken to prevent or reduce water pollution constitutes a BMP. (See <https://en.wikipedia.org/wiki/Best_management_practice_for_water_pollution>, as of Dec. 15, 2016.) Examples range from stenciling warnings on storm drains to limiting litter.
The Orion Project removed the driveway and combined all three basins into just one detention basin. That detention basin would "contain and control the volume and rate of stormwater discharges, provide infiltration to remove sediment and other pollutants, and allow for groundwater recharge."
Like the Original EIR, the Addendum noted that the project was subject to federal and local water quality regulation. It concluded that "[i]n combination, requirements and procedures established under these regulations effectively mitigate any potentially adverse water quality impacts of new development."
The conditions of approval for the Orion Project required the developer to prepare a Water Quality Management Plan (WQMP), which had to be approved by the City Engineer. The WQMP had to include BMPs that were medium to highly effective at treating all pollutants of concern for the project. The conditions provided that "more area than currently shown on the plans may be required to treat site runoff . . . ."
The conditions also required a final drainage study, which had to show "that the increased runoff resulting from the development of this site is mitigated. During no storm event shall the flow leaving the site in the developed condition be larger than that of the predeveloped condition. . . . [A]dditional detention measures, beyond those shown on the tentative map and preliminary drainage study, may be required."
2. Discussion.
The Orion Project replaced the two bioretention basins (plus the one detention basin) that were in the Westridge Project with a single large detention basin. The total size of the basins was more or less unchanged. However, a bioretention basin is not the same thing as a detention basin.
The parties fail to make this clear.
The Challengers complain that the Orion Project "completely dispensed with" bioretention basins, but they never note that it provided a larger detention basin, nor do they explain why a detention basin is not an adequate substitute.
The Defenders claim that the Orion Project simply "re-design[ed] . . . the Westridge Project's storm water detention basin . . . ." This glosses over the omission of the retention basins and implies that the two are equivalent.
A detention basin retains stormwater primarily to prevent flooding, though it may also improve water quality by allowing sediment and other solids to settle out. A bioretention basin, on the other hand, improves pollutant removal by adding plants that can filter stormwater, as well as an engineered floor of soil and gravel that can further filter stormwater before it reaches an underdrain. (See N.C. Dept. of Transp., Stormwater Control Devices, <https://www.ncdot.gov/programs/environment/stormwater/download/examplesofstormwatercontroldevices08.pdf>, as of Dec. 15, 2016.) According to the record before us, a bioretention basin is better than a detention basin at removing seven of the eight classes of water pollutants.
If this were all we knew, we would have to conclude that the Orion Project would have an adverse effect on water quality (although we might still question whether the effect would be substantial). However, we also know that the Original EIR concluded that the Westridge Project would not have significant water quality impacts — not because it had bioretention basins, but because it was subject to demanding federal and local water quality regulations. Similarly, the Addendum concluded that the Orion Project would not have significant water quality impacts because it was subject to the same federal and local water quality regulations. Indeed, pursuant to the conditions of approval, if a bioretention basin proved necessary to minimize water pollution, it would be required as part of the WQMP.
"A condition requiring compliance with another agency's environmental regulations or standards is a reasonable mitigation measure when the lead agency has 'meaningful information' that would reasonably justify 'an expectation of compliance' and when compliance would avoid significant impacts. [Citation.]" (1 Kostka & Zischke, supra, § 6.70 at p. 6-69.) That was the situation here. Hence, there was substantial evidence that the Orion Project would not have any new or greater adverse impacts on water quality.
VIII
DISPOSITION
The judgment is affirmed. The Defenders are awarded costs on appeal against the Challengers.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. SLOUGH
J.