Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCS027819
Reardon, J.
In the years since 1987 when respondent Vallejo City Counsel (City Council) adopted a specific plan for a new residential/recreational community which identified a hilltop parcel as a restaurant site, no plan to develop a restaurant or any other use has been advanced by anyone in the chain of title of that parcel. In the meantime, phases of development within the planned community have occurred, and the City long ago approved a subdivision map for a residential enclave on the land currently owned by real party in interest and respondent Triad Communities, L.P. (Triad). Recently, Triad submitted a revised subdivision map to the City which reduced development within the subdivision.
Defendants and respondents are the City Council and the City of Vallejo (City).
It is the approval of Triad’s modified subdivision map and adoption of a mitigated negative declaration with respect to Triad’s project that appellant Arsalan Darmal challenged below and on appeal. He raises issues of consistency with the specific plan as well as violations of the California Environmental Quality Act (CEQA), as these matters pertain to provision of vehicular access and water service to his property. We reject appellant’s complaints and accordingly affirm the judgment of the trial court denying appellant’s petition for writ of mandate.
I. FACTUAL BACKGROUND
A. Specific Plan; 1987 Development Agreement and Environmental Impact Report
The Hiddenbrooke community, originally called the Sky Valley project, lies south of Interstate 80, between two hilly ridges in northeast Vallejo. In 1987, the City Council approved a specific area plan (Specific Plan) and certified a final environmental impact report (EIR) for development of the Hiddenbrooke planned community, comprising an area of approximately 1,339 acres. The plan was amended several times through 1999, at which time it envisioned a recreation-oriented community with a maximum of 1,551 residential units and various commercial and recreational uses, including a golf course and a hilltop restaurant. The plan also called for 659 acres of open space preserved in its natural state, to surround the developed areas.
The plan designated the restaurant site solely for commercial use, and indicated: “This restaurant, as well as the access road (the alignment of which will be determined during the subdivision process), will be privately owned and operated.” Under the heading “Community Services,” the plan provided: “All development is required to meet the standards of the community service providers. Additional environmental review, and/or additional studies, and associated review fees may be required as part of future subdivision and/or unit plan approvals to [e]nsure adequate capacity and facilities are provided.” As well, the Specific Plan contemplated that development would occur in four phases, tied to four different geographic areas, and “[s]maller phases may occur within these as part of individual tentative map applications and unit plan applications.” The restaurant site was included within phase III.
The Specific Plan references a development agreement between the City and the project sponsor which “[e]nsures that the development will proceed in a timely and orderly manner with adequate infrastructure and public services provided. It also [e]nsures that the project will proceed as approved by the City no matter who is the ultimate developer of all or parts of the project.” That agreement was entered into in December 1987 as authorized by Government Code section 65864 et seq. The City found the agreement to be consistent with the Specific Plan and adopted an ordinance approving the agreement. This agreement made the developer responsible for constructing public improvement, including water transmission, pumping and storage facilities. The provisions of the agreement were binding on the parties and their respective successors and assignees “and all other persons acquiring the property, or any portion thereof.”
In 1987, the City Council certified a final EIR for the Specific Plan. The EIR examined the effects of development of the restaurant site and an access road from the valley floor, including visual, land use and topographical effects. The analysis of water service for the development explained that three possible and alternative alignments of future water mains were under review, with varying requirements for new pump stations and capacity. Due to the variation in elevation, three pressure zones would be required, the highest zone providing services to the restaurant and home sites on the mountain, with an underground concrete reservoir to be constructed. With respect to access to the restaurant site, the EIR indicated that “[t]o avoid these slope gradients [up to and exceeding 50 percent], the access roads will traverse the hillslopes nearly parallel to the elevation contours, probably necessitating substantial road cuts.” In terms of mitigation measures, the report said that the restaurant could remain part of the project, “provided that the road to the restaurant is aligned to minimize slope cuts.”
B. Tentative and Final Maps; 1991 Development Agreement
In August 1990, the City Council approved a tentative subdivision map for phases II and III, covering 920.2 acres. This map delineated 457 residential lots; 19 open space parcels; four lots for the golf course; and single parcels for the restaurant, a resort hotel, commercial use and a fire station. The restaurant site is at the crest of a hilltop ridge at an elevation of approximately 1,100 feet, surrounded by City-owned open space.
The conditions of approval for the map provided that the “access road to the restaurant shall be private and shall not be maintained by the City. The alignment of the road shall be designed to minimize slope cuts of the hillside while still preserving traffic safety.” Conditions applicable to the grading and improvement plans called for including “a note that the access road to the restaurant shall be at the end of ‘H’ Street.” H Street was mapped within phase II and provided access to the golf driving range. However, no specific route from the end of H Street (also called Strata Drive) to the restaurant site was identified and the geotechnical or environmental feasibility of the road was never determined. Around 1999, the golf driving range was relocated, and H Street was “abandoned and realigned in another location.”
Conditions of approval also specified that pump station and water tank installations were the responsibility of the developer, and delineated the elements of those installations.
In May 1991, final subdivision maps were recorded for phases II and III of the Hiddenbrooke planned community project. The restaurant site was not depicted on the 1991 phase III final map.
In August 1991, the City entered into a development agreement with Sky Valley Limited Partnership (Sky Valley), the master developer for the project specified in the tentative subdivision map. The agreement specified that improvements would be constructed in accordance with the 1987 development agreement and the Specific Plan. Pursuant to the agreement, Sky Valley was to construct a water distribution system for the purpose of furnishing a public water supply to the lots and lands within the boundaries of the map. Preliminary cost estimates for phase III water distribution work included a reservoir at the 890-foot elevation and a booster pump station.
C. Triad Purchases Part of Hiddenbrooke and Submits Subdivision Proposal
Initially, the Hiddenbrooke property had been in the unitary ownership of Sky Valley. Subsequently, Triad acquired the property reflected in the phase III final map. This property is located downhill from the restaurant site, separated from it by large tracts of City-owned open space. Appellant purchased the 13.62-acre restaurant site property in May 2005 for $79,626. He has not submitted any unit application or proposal for the site.
In July 2005, Triad submitted an application for a tentative map to resubdivide its phase III property into 70 single-family residential lots and three parcels, two of which would be open space and a third which would include a staging area and trailhead tying into the county’s trail system. The proposed redesign reduced the size as well as number of the residential lots (from 84 to 70), and reduced the total graded surface of the subdivision by 50 percent. The footprint of development thus was diminished while open space was increased and biologically sensitive areas were preserved. The property so removed from the development footprint was located at the higher elevations and would have been served by the 890 zone water main.
D. City’s Actions
The Public Works Department initially noted in its recommended conditions of approval for Triad’s proposal that “the restaurant site . . . was planned to receive utilities and access from phase III. Accordingly, the developer must submit documentation to the City that this requirement has been properly addressed or is no longer required.” Triad objected, noting it had not found any documentation indicating that utilities and access to “the old Hiddenbrooke restaurant site is required through Phase 3.” Triad also queried whether it was true that the City owned or recently sold the restaurant site.
The City conducted a supplemental CEQA review to examine two issues specific to phase III that were not analyzed in the prior EIR for the Specific Plan: potential impacts to two endangered species and impacts to traffic and transportation. A biological assessment and wetland mitigation and monitoring plan were prepared. The analysis of cumulative effects stated that no other development was proposed at the time.
Following this supplemental review, the City prepared a proposed mitigated negative declaration and provided the public with an opportunity for review and comment from November 3, 2005 through December 5, 2005. On December 5, 2005, the City’s planning commission held a public hearing on Triad’s application and unanimously approved the company’s modified subdivision map and adopted the mitigated negative declaration. Two persons (not appellant) appealed. Although not required, the City offered yet another round of public comment on its mitigated negative declaration from December 9 through December 29, 2005. Appellant did not submit comments during either round.
E. Appellant’s Challenge
After the close of the comment period, appellant submitted correspondence to the City concerning the access route and utilities needed in order to develop his site, and objected that the CEQA analysis was inadequate. The City acknowledged by letter that the issues of access and utility easements were not addressed in the staff report, Triad’s tentative map or the mitigated negative declaration. Further, the city attorney had articulated the opinion “that if the Hiddenbrooke Phase III project is the last subdivision to occur within the Hiddenbrooke Specific Plan area, then the alignment of the road must be done as part of the approval of [the tentative map].” In response, staff asked Triad to provide a legal description reflecting alignment of an access road to the site. However, it would be appellant’s responsibility to construct the access road.
Based on this and related communications, the trial court found that appellant had exhausted his administrative remedies for purposes of his CEQA challenge on the issues of access and water service. The City maintains in this appeal that appellant did not exhaust his administrative remedies, arguing that appellant’s objections and comments during the administrative process were too general. Objections must be specific enough to notify the agency of the issues of concern, thus affording the agency the opportunity to respond to and evaluate the objector’s complaints before being subjected to judicial review. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138-1140.) We agree with the trial court that appellant’s objections about road access and a water main were specific enough to meet the Evans test.
With respect to utility improvements and easements, the City conveyed that Triad’s responsibility was limited to the confines of its own property. The City went on to explain that although an access road was designated with the approval of the 1990 tentative map, the route alignment contemplated by that map was not feasible because the connector street could not be constructed as originally proposed. The City considered other access alignments, rejecting as unacceptable one located within phase III (terminus of Street A) that appellant proposed “due to environmental[ly] sensitive habitat and grading issues.” Following back and forth communication, the City proposed that the most feasible access road and utilities alignment would be from Misawa Court or Highgate Road located in another Hiddenbrooke subdivision. Such alignment “would most likely not face the environmental issues associated with an access road located at the end of Street A in Phase III.” However, the Misawa Court point met with opposition from the neighborhood and the Highgate Road entry needed permission from a land trust that was not forthcoming.
In the end with respect to utilities the City required, as a condition of project approval, that Triad provide a 20-foot utility easement at the end of A Street running to the boundary of the Triad site. However, the City did not require Triad to construct a reservoir at the 890-foot elevation because it would not be needed to serve Triad’s development.
On April 11, 2006, the City Council conducted a public hearing to address the administrative appeals of their decisions on Triad’s modified subdivision map and the mitigated negative declaration, as well as the separate issues raised by appellant. Brian Dolan, the acting development services director, delivered the staff report. Dolan explained that it was “staff’s position . . . that we should be working with the property owner to see if we can find a feasible access” and have committed to helping him find it. Four potential access alignments were presented and briefly evaluated. Dolan also intimated that extending utilities across the easement would be a “huge challenge because there are environmental concerns.”
In addition, Dolan made it clear to the City Council through his report that ultimately appellant bore the responsibility “to determine the route, go through all the regulatory channels that it would take, the CEQA process, the geotechnical investigation, environmental review and permitting that it would take to locate the road and also to pay for its construction.” Further, any future development that appellant might someday propose would be a separate project from Triad’s modified subdivision. Various councilmembers expressed their conclusion that approval of Triad’s tentative map was a separate issue from development of the restaurant, with different developers, needing different approvals and its “own EIR.”
The City Council denied the appeals and modified the planning commission’s conditions of approval for the tentative map. With these actions it found that Triad’s unit plan and tentative map were consistent with the intent, purpose, development standards, goals and policies of the Specific Plan and the Vallejo General Plan. In rendering these findings, the City Council incorporated by reference the evidence in the record, including the staff report.
Appellant filed a writ petition challenging the City’s approval of Triad’s unit plan and tentative map, as well as its adoption of the mitigated negative declaration. Rejecting appellant’s claims, the trial court determined that the City’s actions complied with CEQA and the Subdivision Map Act. This appeal followed.
Government Code section 66410 et seq.
II. DISCUSSION
A. Appellant’s Challenge to the City’s Consistency Finding
1. Legal Framework; Standard of Review
The Subdivision Map Act requires that any tentative map approved by a legislative body must be “consistent with” the general plan or any applicable specific plan. A proposed subdivision is consistent with a general or specific plan where the local agency has adopted such plan “and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan.” (Gov. Code, § 66473.5.) Thus the local entity must deny approval of a tentative map if it finds that the proposed map, or the proposed subdivision design or improvement, is not consistent with the applicable general and specific plans. (Id., § 66474, subds. (a), (b).)
The Subdivision Map Act does not require absolute conformity or a perfect match between a proposed project and the applicable plan. Instead, the project must be in harmony or agreement with such plan. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 817; Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 717-718.) General and specific plans attempt to balance an array of competing interests, and for this reason the local agency has discretion to approve a project even though it is not consistent with each and every policy in the pertinent plan. (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1510-1511.) “It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan.” (Id. at p. 1511.)
Once a general or specific plan is in place, it is the job of the elected officials “to examine the specifics of a proposed project to determine whether it would be ‘in harmony’ with the policies stated in the plan. [Citation.] It is, emphatically, not the role of the courts to micromanage these development decisions. Our function is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies, whether the city officials made appropriate findings on this issue, and whether those findings are supported by substantial evidence. [Citations.]” (Sequoyah Hills Homeowners Assn. v. City of Oakland, supra, 23 Cal.App.4th at pp. 719-720.) The standard of review of administrative decisions by a local agency applying the consistency doctrine is whether that agency acted arbitrarily, capriciously or without evidentiary basis. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 677.) An agency’s determination that a project is consistent with the appropriate plan comes to us with a strong presumption of regularity. (Id. at p. 677, fn. 9.) We accord great deference to this determination, recognizing the unique competence of the local agency to interpret the very policies it has adopted. (Id. at pp. 677-678.) Thus we will reverse an agency’s finding that a project is consistent with the applicable plan only if no reasonable person could reach the same conclusion based on the same evidence. (Id. at p. 677, fn. 9.)
2. Access Road
Appellant first charges that the City ran afoul of the consistency requirement by approving Triad’s revised subdivision without aligning an access route to the restaurant site. He focuses on the description of the restaurant in the Specific Plan and specifically the statement that the alignment of the access road “will be determined during the subdivision process.” Indeed, the City did identify an access point to the restaurant lot during the 1990 subdivision process when it approved the tentative map for phases II and III with the condition that the grading improvement plans include a note that access to the restaurant would be at the end of H Street. H Street is shown within the phase II boundaries of the map, running into the golf driving range. However, notwithstanding this provision for access, a specific route from H Street to the restaurant site was never identified. In addition, around 1999 the driving range was relocated and the original H Street alignment was abandoned and realigned in another location.
Appellant points out that according to representatives of Triad, its phase III project was the last subdivision within the Specific Plan area. Thus he maintains, as the city attorney initially counseled, that alignment of the route to the restaurant site had to occur as part of the approval process for Triad’s redesigned subdivision. On the other hand, the City concluded that the consistency doctrine was satisfied, finding that development of the restaurant site was a separate project from Triad’s subdivision, and would require its own review and approval processes. This finding is supported by the record.
We are troubled by the significant gap in the record about the fate of the restaurant site. We do know that the final map for phase III was recorded in 1991 and does not include the restaurant site, notwithstanding that the Specific Plan identifies the restaurant site as belonging within the phase III development. Our perusal of the 1990 tentative map leads us to conclude that the restaurant site actually was located within phase II, not phase III. However, appellant has not provided us with the final map for phase II and therefore we cannot verify the status of the restaurant site vis-à-vis that map. (Respondents state, without citation to the record, that the site was not included in the final subdivision map for phase II.) The record does reveal that the final phase II map was recorded in 1991 along with the final map for phase III. Nevertheless, apparently another phase II map was filed in 1999. Dolan reported at the April 11, 2006 appeals proceeding that “in 1999 the city, in anticipation of moving the driving range, . . . approved a parcel map which essentially removed a note that suggested that there would be access [to the restaurant site] from that particular location.”
Moreover, we do not know when, in the development and subdivision process, the unitary ownership of Sky Valley/Hiddenbrooke was disturbed such that the restaurant site was separated from the phases II and III development activities. The impact of that separation left the restaurant surrounded by City-owned open space, with no ownership connection to the phased developments.
The record thus suggests that development of the restaurant site was abandoned, forgotten, or otherwise fell through the cracks sometime between 1990 and 1999; and the owner/developer never did anything to include the site within the development plans from 1990 forward. Eventually appellant purchased the property in May 2005 for $79,626 (approximately $5,850 an acre). Appellant is now asking that future development of his property be treated as a component of Triad’s revised residential subdivision. He hopes to resurrect the Specific Plan provision that alignment of an access road to his site would be determined during the subdivision process, notwithstanding subsequent, final planning decisions that in effect rendered that provision moot.
The Subdivision Map Act contemplates that the local entity normally will attach conditions to approval of a tentative subdivision map, and thus will approve a final map only upon certifying that the developer has complied with those particular conditions. The statutory scheme compels the conclusion that the approval of a tentative map subject to conditions nonetheless is an approval for purposes of determining the map’s consistency with the existing general or specific plan. (See Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 652; see also Gov. Code, §§ 66473.5, 66474.1.) Indeed, approval of a final or parcel map by a local agency is a ministerial act, once the local agency certifies that it substantially complies with the previously approved tentative map. (Youngblood v. Board of Supervisors, supra, 22 Cal.3d at p. 656; Anthony v. Snyder (2004) 116 Cal.App.4th 643, 669; see Gov. Code, § 66474.1.) In short, accomplishment of all tentative map conditions is, at the outset, a condition of final map approval. (Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 505.)
“A legislative body shall not deny approval of a final or parcel map if it has previously approved a tentative map for the proposed subdivision and if it finds that the final or parcel map is in substantial compliance with the previously approved tentative map.” (Gov. Code, § 66474.1.)
This same reasoning would apply to approval of a parcel map (Gov. Code, §§ 66473.5), which approval shall not be denied if the governing body finds that the map “is in substantial compliance with the previously approved tentative map” (id., § 66474.1).
The time to object to elimination of access alignment occurred in 1999 when the City Council approved a parcel map which removed the note providing for access to the restaurant site, and H Street was realigned. With that map, the phase II access point was eliminated. The City Council’s approval of the parcel map carried with it the assertion that the parcel map was consistent the Specific Plan. (See Youngblood v. Board of Supervisors, supra, 22 Cal.3d at p. 652; see also Gov. Code, §§ 66473.5, 66474.1.)
Appellant’s attorney expressed his opinion at the April 11, 2006 hearing that at the time H Street (Strata Drive) was abandoned and realigned in another location, “all of the easement obligations that were conditioned upon the map, all of the easements that existed on old Strata Drive were abandoned and there was no obligation that continued to provide that access. And at that point I believe that we potentially have a violation of the Map Act . . . .” We conclude that the time for complaining of these events has long passed: “Any action or proceeding to attack, review, set aside, void, or annul the decision of [a] . . . legislative body concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to [that] decision, or to determine the reasonableness, legality, or validity of any condition attached” to the decision, shall not be pursued unless commenced within 90 days after the date of such decision. (Gov. Code, § 66499.37.)
It is appellant’s burden to supply an adequate record to enable us to resolve the issues on appeal. The administrative record before us does not support appellant’s position that access to his property must be determined in conjunction with approval of Triad’s revamped subdivision. Rather, the record reveals that the access point was abandoned during an earlier proceeding with the approval of a parcel map; under the Subdivision Map Act that approval was premised on a finding of substantial compliance with the tentative map, which approval in turn was premised on a finding of consistency with the Specific Plan; appellant’s predecessor in interest did not challenge that abandonment; and the unitary ownership of Hiddenbrooke has been disrupted. From this we conclude that Triad’s project is now separate from development of the restaurant site. The Triad property is owned by a different developer, and the project is located on different property, physically separated from appellant’s undeveloped property by a swath of City-owned open space. Historically, access to appellant’s property was not contemplated through phase III properties. Although the City looked into access from a phase III location, such access proved unacceptable due to environmental and grading issues. Should appellant pursue a development proposal for his property, he will have to work with the surrounding communities and the City to identify an appropriate access route to his site.
Further, we emphasize that the Specific Plan contemplated that the access road to the restaurant site would be privately owned and operated. The 1990 map condition stated unequivocally that the access road “shall be private and shall not be maintained by the City.” The City interpreted its Specific Plan as providing that the alignment, design and construction of the private access road should occur in concert with the City’s actions as they relate to appellant’s development plans and processes for the restaurant site. This interpretation is in keeping with the plan’s concept of phased development which allows for “[s]maller phases” to occur within the four major phases “as part of individual tentative map applications and unit plan applications.” Under this reasonable interpretation, it would be appellant’s responsibility to work with the City to determine access and go through the various regulatory channels if and when he produces a development plan and goes through the subdivision process for that site. Triad’s subdivision project does not propose to subdivide, resubdivide or develop appellant’s property.
Appellant also complains that his property is “landlocked,” with the surrounding property owned by entities over which he has no control, namely the City “and master developer Triad.” First, appellant’s property is entirely surrounded by City-owned open space. Second, nothing in the record indicates that Triad currently owns anything except the phase III project site that is the subject of this appeal. Again, historically the access point to the restaurant site was not linked to phase III development. Rather, the only point officially selected was within the phase II confines. Additionally, the location within Triad’s phase III subdivision which appellant proposed is not feasible. Therefore, any alignment must occur outside the bounds of Triad’s phase III residential project. This reality supports the City’s determination that Triad’s redesigned subdivision and any future project on the restaurant site are two distinct ventures that should not be strapped together.
Further, appellant emphasizes the initial views of the city attorney and staff’s initial draft condition regarding access which favor his position that alignment must be determined as part of Triad’s subdivision application. These opinions and proposals are not dispositive. What matters is the City’s final determination, which we will uphold unless the City acted arbitrarily, capriciously or the decision lacked evidentiary basis. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 677.) In any event, we take these views to reflect staff concern that if access to the restaurant were to be aligned through the Triad site under review, it would make sense to include that alignment within the redesigned subdivision map.
Appellant also attacks the City’s consistency determination as lacking specificity. Here the City’s finding of consistency with the Specific Plan incorporated by reference the report presented by staff at the April 11, 2006 hearing. The written report in turn referred to and attached several other reports.
Dolan, who delivered the report at the hearing, was the author of one of the attached communications that dealt specifically with the restaurant site, summarizing appellant’s concerns and laying out the City’s response. His oral report emphasized that it was appellant’s responsibility to work with the City on an access route, and that the two projects were not related. The City Council proceeding was transcribed and reveals that Dolan’s comments generated discussion at the hearing. For example, the vice-mayor stated his opinion that “approval tonight of the tentative map is, at least for now, is separate from this issue of the restaurant site.” Another councilmember, responding to a statement which Dolan delivered in the form of a question, answered: “Because they would be different developers, it would need different approvals, it would need to go through its own EIR, it would need to have its own process that this Phase III has already had.” We conclude that the administrative record, including the written and oral reports and transcribed hearing, are sufficient to demonstrate the City’s analysis and how it ultimately arrived at its decision. (See Dore v. County of Ventura (1994) 23 Cal.App.4th 320, 328; McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 183-185.)
3. Water Facilities
Appellant further protests that the City disrespected the consistency doctrine by relieving Triad of building the 890 zone infrastructure when it approved the company’s modified subdivision. He contends that the Specific Plan required Triad to provide water delivery infrastructure to his site. Specifically, he points to the statement under the “Community Services” section of the plan to the effect that the water system will provide adequate flows and pressure “at all elevations.” As well, appellant emphasizes the 1987 and 1991 development agreements wherein the predecessor developer agreed to construct certain water facilities, including an underground reservoir at the elevation of 890 feet. He concludes: “Triad, as the successive master developer, is specifically bound by the agreement’s terms.”
First, appellant, a potential developer, is also a “successor” to the prior owner’s obligations under the development agreements. The obligations under the development agreements inure to the parties and their successors and assigns. Triad thus would succeed to the obligations concerning its property, while appellant would succeed to the obligations relating to his property. The Specific Plan provides that all development must “meet the standards of the community service providers.” This provision applies to any future development proposed by appellant on the restaurant site.
Additionally, the Specific Plan indicates that further review may be necessary in connection with future subdivision or unit plan approvals in order to ensure that adequate capacity and facilities are provided. In this same vein, the Specific Plan contemplates that development may occur on a project-by-project basis through individual applications. These provisions support the notion that should appellant proceed with a project application for the restaurant site, his application would have to meet the standards, review processes and the approvals for water service.
Nowhere does the Specific Plan state that a developer of a separate project at a lower elevation is responsible for installing water facilities needed solely to serve the site of another construction project, owned by a different developer, and located at a higher elevation. Nor does the Specific Plan provide that residential development within phase III is responsible for any particular water facilities.
Moreover, as a condition of approval of Triad’s subdivision, the City required Triad to impose a 20-foot wide utility easement running approximately 300 feet to the edge of the Triad project boundary and post a bond for construction of utilities to the boundary, with this proviso: “If it is determined that the Developer is not legally responsible for the construction of utilities, or a Unit Plan has not been submitted for development of the restaurant site within five years of the date of Project approval, the bond shall expire.” (Italics omitted.) This condition, coupled with appellant’s own obligations under the operative plan and agreements, are sufficient to honor the Specific Plan requirement to provide adequate flows and pressure in all structures at all elevations. To reiterate: At this juncture there is no structure on the restaurant site, nor plans for one.
The City’s decision to adopt Triad’s 2006 map without requiring Triad to provide water infrastructure for appellant’s site was not arbitrary, nor did it lack evidentiary basis. With a downscaled residential development resulting, among other things, in grading of less than half the acres originally envisioned in the 1990 map, the 890 water zone main was not needed to serve Triad’s project. Triad’s responsibility extended only to the confines of Triad’s subdivision. As the staff reports indicated, it would be the responsibility of the developer of the restaurant site to construct improvements serving his property. Appellant may use the easement if and when he submits a unit plan proposal to build a restaurant, and the City approves provision of utilities through that easement.
B. CEQA Compliance
Appellant maintains that the City violated CEQA mandates by approving the mitigated negative declaration without considering “the environmental consequences of its decision to approve the 2006 Map relating to the reasonably foreseeable infrastructure development for the restaurant site.” As we explain, appellant’s argument must be reframed and, as reframed, we disagree.
1. CEQA Principles; Standard of Review
Environmental review begins under CEQA when an agency receives an application for a permit or entitlement for use and reviews it for completeness. (Guidelines, § 15060, subds. (a), (b).) The agency must comply with CEQA if it proposes to approve the activity set forth in the application. (Id., § 15002, subd. (e).) “Approval” in this context means “the decision by a public agency which commits the agency to a definite course of action in regard to a project . . . .” (Id., § 15352, subd. (a).) The project, in turn, is “the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies.” (Id., § 15378, subd. (c).)
References to Guidelines are to the administrative guidelines for implementation of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.)
Basic CEQA principles instruct that environmental review should not be prematurely undertaken, nor should it progress in piecemeal fashion. Courts caution that undertaking environmental review where future development is uncertain and unspecified will engage the public agency in useless speculation about future environmental consequences, and ill serves the public fisc. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 395-396 (Laurel Heights); Lake County Energy Council v. County of Lake (1977) 70 Cal.App.3d 851, 854-855.) On the other hand, CEQA seeks to avoid piecemeal review in which a large project is chopped into numerous smaller ones, potentially concealing the cumulative effects of the project as a whole. (City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1333.) To this end, when analyzing the impacts of a proposed project, the public agency must consider whether the possible effects are “ ‘cumulatively considerable,’ ” meaning “that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (Pub. Resources Code, § 21083, subd. (b)(2).)
Laurel Heights is instructive. There, the regents purchased a 10-acre site containing a 354,000 square-foot building. However, the regents only evaluated the environmental impacts of using 100,000 square feet of the facility because the remainder was not available to the School of Pharmacy at the University of California, San Francisco at the time of preparing the EIR. (Laurel Heights, supra, 47 Cal.3d at p. 393.) Nevertheless, the university acknowledged in the draft EIR that it would occupy the entire facility when it became available. (Id. at p. 396.) Our Supreme Court concluded that the EIR was inadequate, announcing 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.” (Ibid.)
In this case the City prepared an extensive program EIR for the Specific Plan focusing on a broad range of improvements and operations, with the understanding that supplementary focused environmental analysis might be required “as detailed design occurs.” This is in keeping with the Guidelines, which provide that subsequent activities in a program “must be examined in the light of the program EIR to determine whether an additional environmental document must be prepared.” (Guidelines, § 15168, subd. (c).) If a later activity would have effects that the program EIR did not examine, the agency must prepare a new initial study leading to either an EIR or negative declaration. (Id., subd. (c)(1).)
Triad’s proposal for a modified subdivision was a later activity within the purview of the Specific Plan that actually reduced the amount of development in the Hiddenbrooke community and increased open space, thereby reducing the resulting environmental impacts. Nonetheless the City did conduct an initial study to address issues not fully vetted in the EIR for the Specific Plan, namely potential impacts to two endangered species, as well as traffic concerns. Based on this initial study, mitigation measures were proposed to address potential impacts in the areas of biological resources and transportation/traffic. With those measures in place, the City adopted a mitigated negative declaration. The party opposing a mitigated negative declaration must demonstrate that it can fairly be argued, based on substantial evidence, that the project as revised and/or mitigated may have a significant adverse effect on the environment. (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332.)
2. The City Complied with CEQA
Appellant’s CEQA challenge is broadly premised on the notion that construction of infrastructure improvements to service his property is reasonably foreseeable. In other words, appellant proposes that the City was required to analyze, as part of its environmental review of Triad’s modified subdivision project, “environmental impacts likely to result from critical decisions of where and how to provide utilities and access to the restaurant site.” Appellant’s argument as stated is not properly framed within the standard of review. The question we must address is whether substantial evidence supports a fair argument that Triad’s project would have significant environmental impacts in light of the City’s approval of the modified subdivision map. (Mejia v. City of Los Angeles, supra, 130 Cal.App.4th at p. 332.) The answer is no.
The simple response is that the critical decisions appellant alludes to have not been made, nor will they be, until he submits a unit application to develop his property, and the City undertakes and completes its review of that application. At the time the City approved the mitigated negative declaration, nearly 20 years had passed since it adopted the Specific Plan. In that span of years no planning, design or proposal related to the restaurant site has been forthcoming from anyone in the chain of title. The CEQA processes do not embrace future activities that have not been proposed for agency approval or that are not the reasonably foreseeable consequence of the project under review. Development of appellant’s property is not the reasonably foreseeable consequence of Triad’s modified subdivision, nor does Triad’s project serve as a catalyst for any such future development. (Laurel Heights, supra, 47 Cal.3d at p. 396; see also City of Antioch v. City Council, supra, 187 Cal.App.3d at pp. 1337-1338 [negative declaration set aside because sole reason for project, consisting of construction of roadway and utilities, was to provide catalyst for further development in immediate vicinity, and achievement of project’s purpose would almost certainly have significant environmental impacts].) Therefore, the record lacks substantial evidence to support a fair argument that Triad’s subdivision as approved will result in significant environmental impacts.
Appellant nonetheless asserts that the approval of Triad’s project included designation of a “utility corridor” to serve the restaurant site running off the end of A Street, even though the City previously indicated that an access road to his property from that location was not acceptable due to sensitive habitat and grading issues. Appellant’s characterization of the record is not accurate. The City did not designate a utility corridor to serve the restaurant site. Rather, it required Triad to reserve a 20-foot wide easement running approximately 300 feet in length from the cul-de-sac at the end of A Street to the edge of the boundary. As City staff explained, with this easement there was “at least the possibility” that appellant might be able to construct a utility extension to his property “should the restaurant site ever go forward.” The easement is just a placeholder should appellant propose a construction project and should the City decide that utilities would most appropriately be extended through the Triad site. This is far short of delineating where utility lines for a possible future restaurant would be located. Moreover, engineering a utility line within a 20-foot easement is a far cry from grading and constructing a road to the top of the mountain. In sum, the potential availability of the easement does not make approval and development of a restaurant a reasonably foreseeable consequence of Triad’s residential project.
Appellant argues that the mitigated negative declaration assumed that the habitat in which the utility easement is located would be preserved as mitigation for development of Triad’s subdivision. For example, the biological assessment informing the mitigated negative declaration states that the Johnny jump-up plant—the larval host for one of the endangered species—is located outside the grading footprint for the project. The underlying assumption is that the pertinent habitat for the Johnny jump-up would remain undisturbed. Again, reservation of an easement for utilities is not synonymous with the grading for a road, nor is such reservation, at this point, more than a placeholder against possible future development which may or may not hinge on utilization of the easement. More to the point, the reduced Triad project was designed to free up biologically sensitive areas and open, hilly space. Any possible impacts based on improvement of appellant’s property are not the result of building the Triad residential community and are speculative at best: They might result at some future point in time if a restaurant is developed on the isolated mountain top and the City sanctions use of the easement.
In the same vein appellant criticizes the “eliminati[on]” of an underground water reservoir at the 890-foot elevation. Such water facilities were not needed for Triad’s reduced residential program—the only project subject to map approval and a mitigated negative declaration. But the City’s approvals do not prevent appellant from proposing, in connection with a future application for his site, that an underground, high elevation water reservoir be installed to serve his project. Any future impacts associated with constructing infrastructure facilities to serve appellant’s property are separate from impacts of Triad’s approved residential program. Moreover, funding for any restaurant is strictly confined to private financing, and again, there is nothing in the record indicating the present availability of financing for that development.
Similarly, appellant complains that the City did not consider the environmental consequences of excluding vehicular access to his property through Triad’s site. This complaint does not present an issue relating to CEQA compliance for Triad’s modified residential subdivision, the project subject to approval. Analysis of impacts, alternatives and mitigations pertaining to access to a possible future project that has not been proposed for approval, is not subject to our review. In any event, as we noted above, construction of an access road through the Triad site is infeasible by virtue of sensitive habitat and grading concerns.
In addition, appellant charges that the analysis of cumulative impacts set forth in the biological assessment undergirding the City’s mitigated negative declaration was unduly restrictive in scope. He relies on the following statement: “The proposed project represents the last phase of development of the Hiddenbrooke Master Planned Community. All other areas have been built out or are currently under construction. No other development is proposed at this time.” It is beyond dispute that no other development was proposed at the time. Nevertheless, appellant asserts that development of his “restaurant parcel” is reasonably foreseeable. CEQA and the Guidelines provide that analysis of cumulative impacts should include the effects of “probable” future projects. (Pub. Resources Code, § 21083, subd. (b)(2); Guidelines, §§ 15130, subd. (b)(1)(A), 15355, subd. (b).) The record does not support the conclusion that construction of a restaurant or homes on the hilltop site is “probable.” First, there is no proposal or hint of a proposal on the table, nor is there any indication that private financing is being sought or secured. Second, significant engineering, environmental and community challenges are associated with developing the parcel. Future development is speculative at best.
Recognizing some of the problems associated with building a restaurant on his property, appellant indicated he was “willing to accept a residential project” instead, which would require amending the Specific Plan.
Finally, appellant finds irrelevant the City’s characterization that any future development of his site is separate from Triad’s final subdivision project. To the contrary, the separateness of these two activities goes to the heart of this case. The statutory mandates of CEQA are not aimed at “dealing with abstract or theoretical plans”; rather, the “intent is aimed at any agency intending to carry out a project.” (Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 291, italics added.) Appellant’s CEQA claims are premature, there being no application or construction plans in the works outlining a “project” within the meaning of CEQA. A separate review process will occur if ever appellant submits a project application.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.