Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV 238992
Lambden, J.
Forestville Citizens for Sensible Growth (FCSG) appeals from part of the superior court’s judgment, in which the court denied most of FCSG’s petition for a writ of mandate. FCSG sought a writ which would direct respondents County of Sonoma (County) and the Board of Supervisors of the County of Sonoma (Board), to reverse certain decisions made regarding the expansion of large-scale aggregate mining operations by real party in interest Canyon Rock Company, Inc. (Company). FCSG’s petition challenged the Board’s approval of the Company’s 20-year use permit and reclamation plan, which enabled the Company to expand its mining operations to approximately 35 acres mostly north of the present quarry site. FCSG also challenged the Board’s rezoning of all of the parcels the Company had recently purchased for expansion of its mining operations, approximately 113.77 acres, to add a mineral resource combining district zoning designation to them, and the Board’s certification of a related final environmental impact report required by the California Environmental Quality Act (CEQA). We reverse that portion of the superior court’s judgment which denies relief related to the Board’s rezoning decision because that decision did not follow CEQA requirements, and remand this matter for further proceedings consistent with our opinion. We affirm the remainder of the superior court’s judgment.
BACKGROUND
The Canyon Rock Quarry (Quarry) has operated at its present location, on approximately 58.3 acres near Forestville, California, since the early 1940s, and is capable of producing high quality aggregate suitable for cement and asphalt production. Since 1973, real party in interest and respondent Wendel Trappe and his family have held a controlling interest in the Company, owner of the Quarry and the land upon which it operates.
In 1981, the County recognized a vested right to conduct mining on the existing quarry property with a maximum annual production level of 500,000 cubic yards per year, based on a 1957 use permit. In 1991, the Board approved a reclamation plan for the Quarry and a use permit for a 4.6 acre expansion onto a portion of an adjacent parcel.
In 1994, the County adopted its Aggregate Resources Management Plan (ARM) plan and a program EIR to establish new standards and policies for aggregate mining operations, plan for future mining projects, and mitigate their impacts. Among other things, the ARM plan anticipated the possibility of increased aggregate production from the expansion of the Quarry, among other quarries, and the termination of production from terrace mining on the east and west sides of the Russian River.
In 1997, the Company applied for an expansion of the Quarry’s mining operations into parcels it had purchased to the west of its existing site (Western Expansion). It requested that approximately 30.3 acres in the Western Expansion be rezoned to add a mineral resource district designation, and asked for approval of a 20-year surface mining use permit at the Company’s already permitted rate of production and a related reclamation plan. The 2004 environmental impact report for the project estimated that the Quarry would exhaust its quarry supplies in four to six years, assuming mining continued at the Quarry at the current rate of production.
After the Planning Commission determined that an environmental impact report (EIR) was necessary for the Western Expansion, the Quarry appealed to the Board, which concluded in 2001 that an EIR, tiered from the previous ARM plan EIR, would be required in order to examine the potential for environmental impacts on traffic, air quality, noise, and water quality.
“ ‘Tiering’ refers to using the analysis of general matters contained in a broader EIR... with later EIRs... on narrower projects; incorporating by reference the general discussions from the broader EIR and concentrating the later EIR... solely on the issues specific to the later project.” (CEQA Guidelines, § 15152, subdivision (a).)
The Company subsequently acquired an additional approximately 83.42 acres to the north of the Quarry site, formulated an alternative project proposal to mine on property primarily in this area (Northern Expansion), and modified its application to seek approval of either its previously proposed Western Expansion option or its newly proposed Northern Expansion option. The Northern Expansion option was subject to a full EIR study, not tiered from the ARM plan. Thus, an EIR was prepared and reviewed by the Planning Commission and Board regarding the Company’s two proposed expansion options.
The EIR
A draft EIR (DEIR) was issued in May 2004 regarding the alternative expansion proposals. The DEIR’s project description, contained in a section of chapter II of the DEIR entitled “Summary,” stated that “[t]he project sponsor has requested the necessary entitlements... to enable the expansion of the existing quarry either to the west or the north of its existing vested rights and permitted area (referred to as the Western Expansion option and Northern Expansion option). Approval of this request would grant a use permit for additional mining for a new 20-year period, under the terms of the County’s [ARM] Plan, mining regulations, and any approval conditions that are imposed.” The project’s stated objectives included continuing to provide a local source of needed aggregate to avoid the high cost and adverse environmental impacts of importing aggregate, extending the life of the Quarry in an economically feasible and environmentally sound manner, and producing high quality aggregate in conformance with the ARM plan and other County goals.
The DEIR measured the impact of each expansion option against a “baseline” derived from the Quarry’s average annual sales level of 375,000 cubic yards of aggregate from 1998 to 2002. It concluded that most of the impacts were either less than significant or could be mitigated to insignificance, although it found that certain impacts related to traffic, noise, and biological resources would remain significant if mitigation proved infeasible or ineffective.
Although rezoning was not mentioned in the summary project description we quote above, in chapter III of the DEIR, entitled “Project Description,” the descriptions of the Western Expansion and Northern Expansion options, and the section entitled “Permit Requirements,” each referred to placing a mineral resource district zoning on all of the approximately 113.77 acres, regardless of which option was approved for mining pursuant to the 20-year use permit applied for by the Company. Chapter III did not discuss this rezoning at any length, however. Instead, chapter III included a section entitled, “Potential Subsequent Mining Beyond Proposed 20-Year Limit of Grading,” which stated in relevant part: “Chapter VI presents a discussion of potential environmental effects that could be expected if a subsequent use permit and reclamation plan were sought at some point in the future to permit mining within the remainder of the Mineral Resources District. Given the speculative nature as to the specific production levels and timing of any potential future mining activities, potential effects are described qualitatively.”
The DEIR’s chapter VI, approximately three and one-half pages long, was entitled “Environmental Effects of Potential Subsequent Mining Beyond the Proposed 20-Year Limit of Grading.” It stated that, since “the Mineral Resource District zone would be placed over a larger area than would be mined under the proposed 20-year use permit for either expansion option,” “if the proposed project is approved, the possibility exists that the owner could apply for a new permit to allow additional mining outside the approved 20-year limit of grading and within the approved Mining Resource District.” It provided a self-described “qualitative”, rather than “quantitative,” analysis because the specific production levels and timing of any potential future mining activities were of a “speculative nature,” which analysis we discuss further, post.
After a public hearing and comment period, during which 97 letters, 83 form letters, and several signed petitions were received, a final EIR (FEIR), which extensively responded to the comments received, was issued in August 2005, and incorporated those portions of the DEIR which it did not modify. The FEIR found, among other things, that the proposed project elements and mitigation measures would improve air quality over existing baseline conditions.
Planning Commission Approval
In October 2005, the County Planning Commission staff reported to the Commission that the Company’s proposed project was “to expand the existing 58.31 acre [Quarry] either by approximately 30 acres to the west or 35 acres to the north and west with an annual production capacity of 500,000 cubic yards per year.” The staff reported that the Company had requested that both the Western Expansion and Northern Expansion areas be rezoned as mining resource district, which “would allow possible extensions and expansions... beyond the 20-year period to be approved with a Use Permit at the Planning Commission level,” and “put people on notice of the potential for mining to continue and expand in the future.” The staff noted that “the DEIR did not analyze the total cumulative effects of mining both expansion areas over time.... [I]f this option[] is selected, recirculation of the EIR may be required.” The Commission staff recommended rezoning only the portions of the Company’s parcels that were approved for the 20-year use permit “to allow a more thorough analysis of future expansion options. Since quarry expansions are usually controversial, this would allow a full Board review when expansions are considered.”
The Commission staff recommended that the Commission certify the FEIR, and approve the staff’s recommended zoning change, use permit, and reclamation plan for the Northern Expansion option with a yearly production limit of 500,000 cubic yards, subject to numerous conditions. The Planning Commission voted four to one to recommend that the Board certify the FEIR and approve the project as recommended by the staff, except that the Commission voted to limit annual production to 375,000 cubic yards pending implementation of traffic improvements, and to 500,000 cubic yards thereafter.
Board Approval
After holding public hearings and making certain modifications, the Board approved the Northern Expansion option in June 2006. The Board modified the rezoning after Trappe had urged the Board in a letter to rezone all of the Company’s 113.77 acres to add a mineral resource district designation so that the issue was resolved now and into the future. He wrote:
“Both the ARM Plan and the State of California encourage all potential mining areas be zoned Mineral Resources for at least two reasons. First, it encourages local government to identify and protect possible mineral resources for future generations, rather than building commercial or residential ventures on these sites. Secondly, the zoning puts future residents on notice that they are moving into a potential aggregate mining area. I have appeared at many public meetings in the last several years, where local citizens have argued that they believed Canyon Rock would be closing after our permit expired. Let me make this clear, as long as I have the legal ability to mine this land, it is my intent to do so until I retire. My children will own and operate this quarry after me, my grandchildren after them. Please zone all of Canyon Rock’s parcels as [mineral resources], as the State encourages this, the ARM Plan calls for it and so my descendents don’t have to defend themselves on this issue to future community residents.”
The Board discussed whether or not to rezone all of the 113.77 acres as a mineral resource district, rather than just the area that would be subject to the 20-year use permit. Its staff advised that a mineral resource zoning “provides sort of a policy intention that the site is likely to continue to be mined,” and that use permit/reclamation plan application for mining within such a zoning would be determined at the Planning Commission level, without requiring a legislative act of the Board. A majority of Board supervisors indicated they favored rezoning all 113.77 acres. For example, Supervisor Smith stated:
“I think that we ought to go ahead and take the legislative act now, the ARM plan calls out for quarry development as being a replacement for terrace mining. If the County truly believes that that’s the direction it wants to go, it ought to put its money where its mouth is and that is, to call this area, a mining resource, and I don’t see any problem with going forward with it.... [H]ypothetically, if the rezoning is allowed for today and you put the [mineral resource] overlay now, a simple Planning Commission BZA would deal with it, sans an appeal. Well, therein lies the incentive for the operator to be a real good neighbor, make the thing work, and by some miracle if there’s no appeal, they could actually take care of the use permit and the reclamation plan at the BZA. I realize that’s all pretty hypothetical, but I think it’s very important for people to be put on notice, particularly newer people that come into this area that the County intends, that this is a mineral resource and people ought to be aware of that. And we all know that there’s not going to be any shortage of public hearing or information or whatever else when you’re dealing with a use permit and a reclamation plan, so I’m very comfortable.”
In June 2006, the Board certified the FEIR, a 20-year use permit for the Northern Expansion, and related reclamation and mitigation monitoring plans. Also, the Board, by a three-to-one vote, passed ordinance number 5667, which reclassified all of the Company’s approximately 113.77 acres in the two expansion areas to add a mineral resource combining district designation. The Board also, in an apparent response to the Company’s concerns regarding the relationship of its production rate limit and imported and recycled material, modified the project to provide that the amount of material, excluding recycled material, sold or exported in any one year from the Quarry would not to exceed 500,000 cubic yards, that a maximum of 125,000 cubic yards of aggregate materials, including recycled materials, could be imported from outside sources in any one year, and that the total amount of material sold or exported, including material imported from outside sources, would not to exceed 562,500 cubic yards per year.
Petition for a Writ of Mandate
In July 2006, FCSG filed its verified petition for writ of mandate in the Sonoma County Superior Court, challenging the Board’s decisions on numerous grounds. Following briefing and hearing on the petition, the court found that the County had violated CEQA by failing to analyze the environmental impacts of the roughly 4,400 additional inbound truck loads per year that would result from the Board’s increase of the annual production limit from 500,000 cubic yards, as analyzed in the FEIR, to 562,500 cubic yards. The court ordered the FEIR to be re-circulated in order to consider these additional truck loads. Its judgment directed the County to set aside its June 2006 approval of the use permit and not to approve the same or a new use permit for the project until it fully complied with CEQA, and ordered the County and the real parties in interest to suspend all activities to implement the use permit that could result in any change or alteration to the environment until that time. The court denied the remainder of the petition.
FCSG subsequently filed a timely notice of appeal. Real parties in interest Canyon Rock Company, Inc. and Wendel Trappe filed a respondents’ brief, to which the County and the Board joined.
During the pendency of this appeal, we also granted respondents’ request for judicial notice of a subsequent resolution of the Sonoma County Board of Supervisors which, after study of the traffic issues raised by proposed project’s increased annual production rate, adopted the findings of an addendum to the FEIR regarding the traffic issues resulting from the increased annual production rate, adopted a statement of overriding considerations, approved a 20-year use permit for the Northern Expansion area, and adopted a mitigation monitoring program.
FCSG also submitted a request for judicial notice of certain Sonoma County Code provisions and a portion of its General Plan Noise Element, which request was taken under submission. We hereby grant this request pursuant to Evidence Code section 452, subdivision (b).
DISCUSSION
FCSG argues three grounds for the reversal of that portion of the superior court’s judgment denying its petition. These grounds are that the County did not sufficiently disclose, analyze, and mitigate the environmental impacts of the Board’s rezoning of the Company’s 113.77 acres to add a mineral resource combining district designation, that the EIR analyses of the project’s current and future air quality impacts were inaccurate and misleading, and that the Board approved the project in violation of the County’s general plan and certain ordinances. We reverse the court’s judgment regarding the first ground, and affirm the judgment regarding the other two.
I. Standard of Review
“ ‘CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.] In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Citations.] CEQA is to be interpreted “to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” ’ ” (Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection (2006) 142 Cal.App.4th 656, 666.)
“As a general rule, CEQA requires the preparation of an [EIR] for any project which has a potential significant effect on the environment.” (Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection, supra, 142 Cal.App.4th at p. 666.) The EIR is “an informational document which, when its preparation is required..., shall be considered by every public agency prior to its approval or disapproval of a project.” (Pub. Resources Code, § 21061.) “The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR.” (In re Bay-Delta et al., supra, 43 Cal.4th at p. 1162; see also CEQA Guidelines, § 15003, subd. (a).) “The purpose of an [EIR] is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” (Pub. Resources Code, § 21002.1, subd. (a).) It is intended “to give the public and government agencies the information needed to make informed decisions, thus protecting ‘ “not only the environment but also informed self-government.” ’ ” (In re Bay-Delta et al., at p. 1162.) “CEQA does not require technical perfection in an EIR, but rather adequacy, completeness, and a good-faith effort at full disclosure. A court does not pass upon the correctness of an EIR’s environmental conclusions, but only determines if the EIR is sufficient as an informational document.” (CEQA Guidelines, § 15003, subd. (i).)
In conducting our review, our task “ ‘ “is the same as that of the trial court. ” ’ ” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.) We must determine whether the County prejudicially abused its discretion. “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Pub. Resources Code, § 21168.5.) Thus, “[a]n appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) “[A] reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure of a dispute over the facts.” (Id. at p. 435)
“[N]oncompliance with the information disclosure provisions of [CEQA] which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements... may constitute a prejudicial abuse of discretion... regardless of whether a different outcome would have resulted if the public agency had complied with those provisions.” (Pub. Resources Code, § 21005, subd. (a).) “Certification of an EIR which is legally deficient because it fails to adequately address an issue constitutes a prejudicial abuse of discretion regardless of whether compliance would have resulted in a different outcome.” (Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428.) “[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.” (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829.)
Accordingly, “[a]n adequate EIR must be ‘prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.’ ([CEQA] Guidelines, § 15151.) It ‘must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ ” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.) “An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (CEQA Guidelines, § 15151.) “While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.” (CEQA Guidelines, § 15144.)
II. Rezoning
FCSG argues that the FEIR was legally deficient because it did not adequately disclose relevant, readily available information about the impacts of the County’s decision to rezone all of the 113.77 acres in the two expansion areas. Therefore, FCSG argues, the Board’s certification of the FEIR was a prejudicial abuse of discretion and must be set aside. We agree.
A. Legal Standards and Background
CEQA requirements have been applied to discretionary projects which involve “the enactment and amendment of zoning ordinances.” (Pub. Resources Code, § 21080, subd. (a); CEQA Guidelines, § 15378; see Lee v. City of Lompoc (1993) 14 Cal.App.4th 1515, 1520; Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1131; Northwood Homes, Inc. v. Town of Moraga (1989) 216 Cal.App.3d 1197, 1206 [all citing Pub. Resources Code, § 21080, subd. (a)]; cf. Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 286 [discussing, without deciding, whether all enactments of zoning ordinances constitute discretionary projects under CEQA regardless of whether all the requisite elements contained in the statutory definition of “project” are met], disapproved on another ground in Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 297; Citizens for Responsible Government v. City of Albany (1997) 56 Cal.App.4th 1199, 1211 [stating that “[i]t does not follow, however, that all zoning amendments require CEQA compliance”].)
Furthermore, as indicated in cases cited by the parties, “ ‘reasonably anticipated future projects’ must be considered in an EIR and discussed in a cumulative analysis.” (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 370 (Rio Vista), citing Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 394 (Laurel Heights) and City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1452.) “ ‘ “An 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.... [¶] Under this standard, the facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.” ’ ” (Rio Vista, at p. 372, quoting Laurel Heights, at p. 396.)
The parties do not dispute that the Company is prohibited from conducting large-scale mining operations in areas that are not zoned as a mineral resource district. Prior to the Board’s actions, the Company’s existing mining site was zoned as a mineral resource combining district, but the 113.77 expansion area acres were not. The parties do not dispute that, with an appropriate use permit, property so zoned could be utilized for hard rock quarry operations producing up to 5,000 cubic yards annually on up to five acres located at least four miles from the nearest approved source of aggregate materials, and were subject to other limitations. (Sonoma County Code, § 26-10-020, subds. (hh)(2)-(4), (7).)
By approving a use permit for the Northern Expansion option, the Board enabled the Company to conduct large-scale mining operations in approximately 35 acres without the resources and rural development base zoning district limitations. (Sonoma County Code, § 26-72-020, subd. (a)(1).) Also, by rezoning the remainder of the 113.77 acres, the Board reserved all of the Company’s remaining expansion area for large-scale mining operations in the future, since a mineral resources zoning “restricts residential and other incompatible uses” and allows uses which “supersede those allowed in the applicable base district.” (Sonoma County Code, § 26-72-005.)
B. The Rezoning
The FEIR’s discussion of the impacts of rezoning the remainder of the 113.77 acres did not meet CEQA requirements. As FCSG argues, City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229 (Carmel-by-the-Sea), is directly on point to the present circumstances. In that case, a developer sought to change the zoning for approximately 20 acres of land to enable a more expanded residential use of the property, but did not submit a development proposal with this rezoning request. (Id. at pp. 233-234.) The request was accompanied by a field study that proposed a boundary line for 4.68 acres of wetlands contained within the area. (Id. at p. 234.) After considerable public debate about this boundary line, the county planning commission adopted the developer’s proposal and recommended to the county board of supervisors that a negative declaration, rather than an environmental impact report, would be appropriate because of the developer’s intent to keep the existing land use. (Id. at pp. 234-235.) The board passed the rezoning ordinance without requiring an EIR, concluding it was not necessary in the absence of a proposed expanded use of the land, and because a later EIR would be required in connection with any such proposal. (Id. at pp. 232, 235.) The superior court granted the City of Carmel’s subsequent petition for a writ of mandamus to compel the county to set this ordinance aside, from which the developer appealed. (Id. at pp. 232, 235.) The appellate court denied the appeal, agreeing with the City of Carmel’s argument that the rezoning itself constituted a CEQA “project” that required preparation of an EIR, even if no actual development was being proposed. (Id. at pp. 241-243.) The court held that the rezoning proposal was “a necessary first step to approval of a specific development project” that “represent[ed] a commitment to expanded use of the property.” (Id. at p. 244.)
The Board’s rezoning of the 113.77 acres also was a significant first step to approvals of future large scale mining operations throughout this area of the kind contained in the Company’s present proposal. The Board rezoned more than three times the area recommended by the Planning Commission after Commission staff reported that doing so would, among other things, “allow a full Board review when expansions are considered,” and after Trappe made clear that he and his family sought this rezoning to help them to obtain future approvals for large-scale mining operations, and so they “don’t have to defend themselves on this issue to future community residents.” (Bold omitted.) The Board also took action after its staff informed it that rezoning “provides sort of a policy intention that the site is likely to continue to be mined,” and that an application within such a zoning “for just a use permit and reclamation plan” would be determined at the Planning Commission level. Supervisor Smith’s hearing statement indicated support for the rezoning in significant part because, were the Company to apply for a use permit in the future, “a simple Planning Commission BZA would deal with it, sans an appeal.” In other words, the local law and record indicate that the Board’s rezoning was a commitment to reserve the 113.77 acres for probable future large-scale mining operations that would continue for approximately 70 years, and helped the Company to obtain approvals more readily in the future for such operations.
Thus, while the parties do not contest that Planning Commission reviews of future projects would likely involve further EIRs, the Board’s passage of the rezoning ordinance aided the approval of probable future large-scale mining projects, the details of which were reasonably foreseeable in many respects. The specifics of these projects may be subject to some variation. However, “[t]he fact that the environmental consequences of a rezoning may be more amorphous than those flowing from a precise development plan does not compel the conclusion that no EIR is required. The CEQA guidelines recognize that an EIR for zoning purposes will necessarily be less detailed than one prepared for a specific construction project. Guidelines section 15146, subdivision (b) provides that ‘[an] EIR on a project such as the adoption or amendment of a comprehensive zoning ordinance... should focus on the secondary effects that can be expected to follow from the adoption... but the EIR need not be as detailed as an EIR on the specific construction projects that might follow.’ ” “Thus the difficulty of assessing future impacts of a zoning ordinance does not excuse preparation of an EIR; such difficulty only reduces the level of specificity required and shifts the focus to the secondary effects.” (Carmel-by-the-Sea, supra, 183 Cal.App.3d at p. 250,)
Accordingly, the Board should only have certified the FEIR if it contained best efforts to disclose all that it reasonably could foresee about the possible environmental impacts of the rezoning ordinance, consistent with CEQA requirements. (E.g., CEQA Guidelines, §§ 15151, 15144; Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 712.) The FEIR did not. Although it refers to rezoning all of the 113.77 acres, this rezoning was not included in the summary project description, and the FEIR’s discussion focuses almost entirely on the possible environmental impacts of large-scale mining operations as proposed in either the Western Expansion or Northern Expansion option, the two alternative sites for the Company’s requested 20-year use permit. The possible environmental impacts of sequentially conducting large scale mining operations throughout the 113.77 acres over the next 70 years, however, are largely unaddressed, except for the “qualitative” discussion contained in the three and one-half-page chapter VI, entitled “Environmental Effects of Potential Subsequent Mining Beyond the Proposed 20-Year Limit of Grading.” We now review this chapter.
C. The FEIR’s Chapter VI
The discussion in chapter VI about the possible environmental impacts of future large-scale mining operations is legally inadequate for a number of reasons.
First, chapter VI did not address the cumulative effects of the Company’s future mining operations. As indicated by the Planning Commission staff’s report, “the DEIR did not analyze the total cumulative effects of mining both expansion areas over time[.]” The staff was correct when it opined that “if this option[] is selected, recirculation of the EIR may be required.” Under the circumstances, before the Board certifies an FEIR and approves a project that includes the rezoning of the 113.77 acres as a mining resource combining district, and possibly the Board’s last review of the matter for the next 70 years, the FEIR must contain a sufficient, non-speculative, analysis of the cumulative environmental impacts of future mining operations in these areas.
Second, significant parts of chapter VI appear to have addressed qualitative impacts of possible future mining in the Northern Expansion area only. It did not address at all the impacts of future mining operations in the Western Expansion area on biological resources, although the record indicates that area contains seasonal wetlands and an intermittent creek, as well as “higher quality” habitat for protected species, and the FEIR analyzed the impacts of Western Expansion biological resources if mining had proceeded there first, pursuant to the 20-year use permit. It is unclear which of the chapter’s remaining sections took into account the impacts of future mining operations in the Western Expansion area after the mining of the Northern Expansion option is completed.
Whatever the scope of their discussion, other sections only cursorily discussed environmental impacts beyond the initial 20 years. The section on noise stated that unspecified “subsequent mining beyond the 20-year limit on grading would move on-site noise sources... closer to certain of-site residences compared to the proposed Northern Expansion option,” and refers to “potential increases in non-quarry regional traffic” that would “increase ambient noise levels in the study area,” without further explanation. While it stated that mitigation measures identified for the current project, if applied to subsequent mining, could “serve to reduce the subsequent mining noise impacts to off-site receptors,” it gave no indication if it was believed that this would be sufficient.
Similarly, the section regarding possible impacts on water quality and hydrology stated that impacts “could” be “similar” to those of the current project, listing some examples. It presented no further analysis, other than to indicate that mitigation measures identified for the present project could reduce the impact of subsequent mining, because “the level of impact would be largely dependent on the specific location and duration of potential subsequent mining.” While there is no obligation to speculate, this statement obviously falls short of an attempt to make “best efforts to find out and disclose all that it reasonably can” regarding these possible impacts. (CEQA Guidelines, § 15144.)
The section’s traffic analysis also is too conclusory. It stated that traffic impacts “beyond the 20-year horizon could be worse than under the cumulative scenario assessed in this EIR,” but concludes without explanation that implementation of unspecified “long-range transportation improvements” would “serve to reduce” this impact. These are conclusions, not an analysis of what is reasonably foreseeable. An EIR “must contain facts and analysis, not just the bare conclusions of a public agency.” (Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 831.)
As a result of this legally inadequate discussion of the possible impacts of future mining projects, we also agree with FCSG that the county’s finding that the impacts of rezoning could be sufficiently mitigated was unsupported by substantial evidence. CEQA requires that a lead agency consider the whole of the project before it, and the agency cannot avoid this requirement “by chopping up a proposed project into bite-sized pieces which, individually considered, might be found to have no significant effect on the environment.” (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 716.) CEQA defines the term “project” broadly to encompass the “whole of an action, which has a potential for resulting in a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment,” and, as we have already mentioned, includes zoning ordinances. (CEQA Guidelines, § 15378, subd. (a).) In effect, the Board segmented review of the “project,” i.e., the rezoning, by its insufficient discussion of all reasonably foreseeable changes in the environment resulting from it.
FCSG also argues that certain of the FEIR assertions were “demonstrably false.” In light of our ruling, we do not reach conclusions regarding these arguments.
D. Respondent’s Arguments
Respondents make numerous arguments that the FEIR sufficiently discusses possible future mining operations in the 113.77 acres, all of which are unpersuasive.
1. The FEIR’s Discussion
Respondents contend that the FEIR “treated the addition of the MR zone as an integral component of the Project, and disclosed, analyzed, and mitigated its impacts in every chapter of the EIR.” They support this sweeping generalization with a single general citation to 235 pages of the FEIR, which amounts to all of chapters IV and V of the FEIR. At oral argument before this court, respondents’ counsel maintained that the rezoning was discussed throughout these chapters. This argument is not supportable.
Chapter IV, entitled “Environmental Setting, Impacts and Mitigation Measures for Western and Northern Expansion Options,” included discussions regarding transportation and traffic, air quality, noise and hydrology and water quality These sections did not include analysis of the potential cumulative environmental impacts resulting from future mining operations throughout the rezoned 113.77 acres. To the contrary, the section’s discussion was repeatedly limited to the proposed Western Expansion and Northern Expansion options, for which the 20-year use permit was requested. For example, the section on transportation and traffic refers to a study of impacts until 2021 only. The section on air quality evaluated “the potential impacts of the proposed Western and Northern Expansion options on regional and local air quality from both stationary and mobile sources of emissions,” its methodology was based on examination of the years 2007 and 2021, and its discussion of impacts referred repeatedly to the impacts on the Western or Northern Expansion options only, not to any potential cumulative impact of future mining throughout the 113.77 acres. The section on noise provided “an assessment of the potential noise impacts that may arise from the implementation of either one of the expansion options[.]” Its project impact discussions also referred repeatedly to the impacts on the Western or Northern Expansion options only. The section on hydrology and water quality’s discussion of impacts also focused again and again on the Western and Northern Expansion options only. For example, the section stated as one impact that “[i]mplementation of the proposed project could adversely affect local groundwater resources by reducing recharge to groundwater wells or causing permanent, unrecoverable groundwater level decline in nearby wells. This would be a potentially significant impact under the Western or Northern Expansion options.” (Bold omitted.) In discussing these impacts, the section addressed the potential cumulative impact when considered with the activities of another quarry, the Blue Rock Quarry. However, this cumulative analysis considered the Blue Rock Quarry’s activities when combined with either expansion option, not both, and not with regard to any cumulative effect of the possible future mining of the 113.77 acres.
Chapter V of the FEIR, entitled “Environmental Setting, Impacts and Mitigation Measures for Northern Expansion Option Only,” also did not discuss possible impacts from future mining throughout the 113.77 acres. Instead, it discussed “land use planning issues related to the implementation of the proposed Northern Expansion option....” The chapter’s discussion of applicable plans and policies included a short discussion of a mining resource combining district overlay, which, it merely stated, “has been applied to the existing vested rights and permitted quarry area.” The chapter’s discussion focused on the Northern Expansion option, although it included some discussion of the Western Expansion option as well.
According to the discussion, the mining resource combining district overlay’s stated purpose “is to conserve and protect land that is necessary for future mining resource production,” and such a “district allows mining with the issuance of a surface mining use permit and the approval of a reclamation plan, but restricts residential and other incompatible uses. Its uses supersede those allowed in the applicable base district.”
Thus, contrary to respondents’ contention, chapters IV and V did not disclose, analyze, and mitigate the impacts of future mining throughout the rezoned 113.77 acres. As we have previously discussed, the FEIR, although it did not include the rezoning of the 113.77 acres in the summary project description contained in chapter II, did refer to the rezoning in chapter III, when it described the project in detail. Nonetheless, discussion of “potential environmental effects that could be expected if a subsequent use permit and reclamation plan were sought at some point in the future to permit mining within the remainder of the Mineral Resources District” was presented in chapter VI.
Respondents further argue that the FEIR “disclosed and analyzed all the potential impacts of adding the MR zone,” and that chapter VI contains a sufficient discussion in light of the uncertainties surrounding any future development, and that the chapter is an “ ‘objective, good faith effort to comply with CEQA.’ ” (Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1280.) This is contradicted by the gaps in chapter VI’s analysis that we have discussed, as well as by the record. It is reasonably feasible, foreseeable, and not speculative, to consider the possible impacts of future large-scale mining operations in the Western Expansion area, given the Company’s proposal of this alternative and the FEIR’s existing analysis, albeit limited to the possible impact of mining the area first, over the next 20 years.
It is also reasonably feasible, foreseeable, and not speculative, to further discuss the impacts of such future mining operations in the remainder of the Northern Expansion area. The record contains information which assumed that mining would occur throughout the 83-acre area north of the present site, such as the draft reclamation plan filed for the Northern Expansion option. Indeed, the Company characterized this draft as an application to permit the expansion of the Quarry throughout the approximately 83 acres. The draft reclamation plan calculated that 25 million cubic yards of rock could be removed from this area, and acknowledged that “an operation of this scope will have environmental impacts.” The Company also provided a final grading map depicting quarrying of the entire area.
Again, nothing herein is intended to imply that a speculative or exhaustive analysis of such future large-scale mining operations is required. However, the existing discussion in chapter VI, with its lack of cumulative analysis, conclusory statements, unexplained assumptions, and gaps regarding future Western Expansion mining operations, is legally inadequate in light of the Board’s decision to pass the rezoning ordinance.
2. The Lack of a Binding Commitment to Future Projects
Respondents also suggest that more meaningful EIR analysis is not necessary because the Board did not make any binding commitment to mining beyond the 20-year use permit, any future mining would not take place for at least 20 years, and further EIR analyses would be conducted for future projects in any event. However, as we have already indicated, and as the Board discussed, the rezoning plainly was a commitment to future large-scale mining operation in the area. Under Carmel-by-the-Sea, supra, 183 Cal.App.3d 229, and analogous court decisions, a meaningful EIR analysis was necessary before the Board could approve it. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 384-385 [airport land use plan was a CEQA “project” because it could displace development in other locations]; DeVita v. County of Napa (1995) 9 Cal.4th 763, 793-794 [general plan amendments are generally subject to CEQA review]; Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 281-282 [annexation of agricultural land in anticipation of future development required CEQA analysis]; City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 538-539 [revisions to sphere of influence guidelines that might ultimately promote development were a CEQA “project”]; Rosenthal v. Board of Supervisors (1975) 44 Cal.App.3d 815, 824 [rezoning of parcels of undeveloped land required CEQA analysis].)
We are not persuaded by respondents’ attempt to distinguish Carmel-by-the-Sea, supra, 183 Cal.App.3d 229. Respondents correctly point out that the court in that case determined whether an EIR should have been prepared for a rezoning proposal, rather than the sufficiency of an existing EIR’s discussion of the proposal’s impact (id. at p. 236), but respondents do not explain how this distinction matters. They similarly argue that, unlike the present circumstances, the board in Carmel-by-the-Sea made a commitment to the more extensive use of the property by setting the wetland area’s boundaries, thereby limiting the size and density of any future project. (Id. at pp. 245-256.) We agree with FCSG that this actually supports FCSG’s position, because that commitment is analogous to the Board’s decision to reserve the use of the 113.77 acres for future mining operations by designating it as a mineral resources combining district. Respondents also correctly note that in Carmel-by-the-Sea, while no development plan had been approved, one had been submitted to the county. (Id. at pp. 243-244, fn. 7.) There is no indication, however, that this was determinative of the issues before the court that are relevant to this case. Respondent’s distinctions are unpersuasive.
Respondents also argue that “a ‘first step’ does not trigger CEQA where the future project has not been approved, and would subsequently require its own environmental review,” a proposition with which we disagree based on the case law we discuss, ante. This future review does not excuse the kind of discussion called for presently. The fact “[t]hat further governmental decisions need to be made before a land use measure’s actual environmental impacts can be determined with precision does not necessarily prevent the measure from qualifying as a project.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at p. 383; see also Carmel-by-the-Sea, supra, 183 Cal.App.3d at pp. 250-252 [discussing the need for a present EIR despite the further study that would occur at the development stage].)
The cases cited by respondents in support of its argument that CEQA is not necessarily triggered by the rezoning ordinance are distinguishable. In El Dorado County Taxpayers for Quality Growth v. County of El Dorado (2004) 122 Cal.App.4th 1591, the court upheld a county’s decision to approve a reclamation plan for future mining operations without analyzing the impacts of the mining itself. However, that reclamation plan did not involve a change in land use policy that would have allowed expanded mining, but merely a plan to restore the landscape following completion of mining that might, or might not, occur. (Id. at pp. 1598-1600.)
Similarly, in Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, also cited by respondents, the court upheld a county’s decision to approve the conversion of a single-family residence into a neighborhood synagogue without analyzing the applicant’s stated hopes for future expansion. (Id. at pp. 138, 161.) The court held that the impacts of the synagogue participants’ “dreams” of possible future expansion did not need to be analyzed because the applicant had not sought permission for an additional expansion, which was not reasonably foreseeable. (Id. at p. 162.) At the same time, the court stated that it had “no quarrel with the importance of analyzing future growth at the initial study stage, prior to approving a negative declaration, when such growth is reasonably foreseeable.” (Id. at p. 161.)
Respondents also cite this court’s decision in Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1351, 1361, in which we concluded that the analysis of impacts of an unapproved, potential future runway expansion project was unnecessary in the contest of a proposed airport development plan. Unlike the circumstances before us, however, we found that the record was “silent” as to “any meaningful planning, decisionmaking, or any other activity... moving forward with implementation” of long-range plans. (Id. at p. 1361.) We also determined that the airport development plan was not linked to the future runway expansion. (Id. at p. 1362.)
The other cases respondents cite in its footnotes are similarly distinguishable. (See Rio Vista, supra, 5 Cal.App.4th 351 [EIR adequately described project, which did not involve a land use planning decision, and considered a reasonable range of alternatives under the circumstances]; Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274 [EIR evaluating the construction of a stadium need not consider the impact of other potential capital improvements in a master plan, when the same reviewing body would subsequently consider the impacts of those improvements]; Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1030-1032 [finding it not necessary to further analyze the impacts of a memorandum of understanding that was “conceptual,” did not approve development, did not involve any specific development proposals, and did not change the existing land use designation or waive any existing land use requirements]; National Parks and Conservation Assn. v. County of Riverside (1996) 42 Cal.App.4th 1505, 1518-1519 [analysis of the impacts of possible ancillary facilities that would be needed to operate an approved landfill was not necessary in part because detailed, useful information about their location and design was unavailable]; Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 580 [no substantial evidence of significant environmental impacts and, even if there were, the subject areas were only “ ‘tentatively reserved’ ”].)
Respondents’ argument that further analysis is unnecessary in light of the fact that further mining will not occur for at least 20 years is also unpersuasive. Respondents do not cite any legal support for their implied proposition that the amount of time that will pass before further development occurs is somehow determinative; again, the issue is what is reasonably feasible to analyze, and whether or not best efforts have been made to disclose all that reasonably can be disclosed. (CEQA Guidelines, §§ 15144, 15151.) Under the particular circumstances of this case, the record indicates that it is reasonably feasible to discuss the possible environmental impacts of the probable future mining operations that are anticipated to occur after the expiration of the 20-year use permit in the remainder of the 113.77 acres.
3. Waiver of Claims Argument
Respondents also argue that FCSG waived its two “claims” that adding the mining resources designation superseded uses allowed in the resources and rural development base district, and that the rezoning eliminated the necessity of future Board review, because no party raised these issues during the administrative process, citing Public Resources Code section 21177, subdivision (a), and Resource Defense Fund v. Local Agency Formation. Com. (1987) 191 Cal.App.3d 886, 894 [“the exact issue raised in the lawsuit must have been presented to the administrative agency so that it [may] act and render the litigation unnecessary”].) We reject this argument as well.
Public Resources Code section 21177, subdivision (a), states that “[n]o action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division 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.”
First, respondents’ argument mischaracterizes the two issues as “claims” of “noncompliance” pursuant to Public Resources Code section 21177, subdivision (a). FCSG does not argue that either of these matters somehow constitutes noncompliance with CEQA requirements; rather, as the Board itself indicated in its own discussion of the two issues, passage of the rezoning ordinance resulted in these changed legal circumstances. FCSG and others repeatedly challenged the adequacy of the FEIR because the FEIR did not sufficiently analyze the possible environmental impacts of the zoning change, including the possible cumulative impacts of mining the entire area.
Also, as FCSG argues, it is not necessary that every argument that might have some bearing on its claim be made during the administrative process. (See McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1264 [in administrative proceedings, “[i]t is not necessary to identify the precise statute at issue, so long as the agency is apprised of the relevant facts and issues”]; Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1750 [noting that the objecting organization “while not identifying the precise legal inadequacy upon which the trial court’s ruling ultimately rested, fairly apprised [the public agencies] that [the objecting party] believed the environmental impacts of developing the Project... would be deleterious to the surrounding community”].) Therefore, we find that no waiver occurred.
Respondents also contend that these two arguments should be rejected on their merits. Respondents contend that the rezoning may have superseded uses allowed in the resources and rural development base district, but ignore the limitations on mining in the base district that we have already discussed. Respondents also argue that eliminating Board review of future permit applications is of little consequence because the Board would hear any appeal regarding those applications, and that “[i]t is absurd to suggest that no party would appeal a future mining approval.” This “absurdity,” however, was acknowledged in the comments of Supervisor Smith, indicating its potential importance.
Accordingly, we reverse the trial court’s judgment to the extent it found the FEIR sufficiently addressed the rezoning of all 113.77 acres and upheld the Board’s findings related to the rezoning, and remand with instructions to the trial court to issue a writ of mandate requiring that an EIR be prepared and recirculated with an analysis of the possible environmental impacts of this rezoning sufficient to meet CEQA requirements before any project’s approval is issued.
III. The FEIR’s Analysis of Future Air Quality Impacts
FCSG next argues that the FEIR’s air quality impact analysis was insufficient because it compared the Quarry to an unrealistic baseline, and improperly relied upon a
a computer model to predict present and future diesel particulate matter (DPM) emissions, “even though credible monitoring of actual omissions showed that the model’s assumptions were off by as much as an order of magnitude.” We reject both arguments.
A. The Baseline
FCSG argues that the FEIR was inadequate because it used an environmental “baseline” derived from the Quarry’s five-year average annual sales of 375,000 cubic yards. FCSG contends that this baseline “defied common sense and frustrated CEQA’s purpose” by obscuring that the Quarry, if the project was not approved, would exhaust its reserves and shut down in four to six years. FCSG also contends the baseline failed to provide a consistent account of the incremental physicalimpacts of expanding production from 375,000 to 500,000 yards per year, since it assumed that the project would benefit from future reductions in air pollution emissions but did not apply this same assumption to the baseline production model. We are not persuaded by either argument.
1. FCSG’s “Misleading” Argument
CEQA defines the “baseline” as “the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published.” (CEQA Guidelines, § 15125, subd. (a).) CEQA requires that an EIR analyze project impacts by “comparing existing physical conditions with the physical conditions that are predicted to exist at a later point in time, after the proposed activity has been implemented. [Citation, footnote omitted.] The difference between these two sets of physical conditions is the relevant physical change.” (Wal-Mart Stores, Inc. v. City of Turlock, supra, 138 Cal.App.4th at p. 289, disapproved on another ground in Hernandez v. City of Hanford, supra, 41 Cal.4th at pp. 295-297.) The baseline should reflect a project’s “ ‘real conditions on the ground’ ” rather than “ ‘hypothetical situations. ’ ” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 121; see also San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 659 [“established usage of the property may be considered to be part of the environmental setting”].) The baseline determination “is the first rather than the last step in the environmental review process.” (Save Our Peninsula Committee, at p. 125.)
FCSG argues that Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at pages 125-126, supports the proposition that “the baseline must take into account changes that occur over time.” (Italics added.) We do not agree. While the court in Save Our Peninsula Committee indicated that “the date for establishing baseline cannot be a rigid one” (id. at p. 125), it did not adopt the rule FCSG espouses.
Future conditions that might exist if the proposed project is denied are not included in this “baseline” analysis, but are instead captured through the “no project” alternative analysis. (See CEQA Guidelines, § 15126.6, subd. (e).) This analysis examines “what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services.” (Id., subd. (e)(2).) The conditions that would exist upon project denial are “notthe baseline for determining whether the proposed project’s environmental impacts may be significant[.]” (Id., subd. (e)(1).)
Accordingly, the FEIR used the five-year production average of the Quarry from 1998-2002 as the baseline for comparison, as directed to do by the Board and in keeping with CEQA Guidelines section 15125, subdivision (a). FCSG argues the FEIR’s baseline was misleading and led to a failure to mitigate the project’s real air quality impact because it concealed that PM10 emissions in 2021 would be 32.3 tons a year as compared to nothing were the project to be denied, rather than as compared to the assumed baseline of 26.5 tons a year that were emitted by mining operations during the 1998-2002 baseline period that was selected. FCSG argues this baseline was legally insufficient in the face of “what common sense says it should do and what the EIR’s most important audience, the public, will naturally assume it does: compare what will happen if the project is built with what will happen if the site is left alone.” (Woodward Park Homeowner’s Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 707.)
FCSG’s argument ignores a number of circumstances. First, while the parties do not dispute that the present Quarry will ultimately cease operations, this was a future event at the time that is itself based on certain estimates and assumptions. The FEIR stated that “[t]he material remaining in the currently approved mining area contains between two and three million cubic yards (CY). That material is expected to last from four to six years, assuming the existing production rate continues unchanged. Once this material is depleted, it is assumed that mining at the [Q]uarry would cease[.]” (Italics added.)
Second, it cannot be credibly argued that the FEIR was misleading on this issue because it contained an extensive discussion premised on the present Quarry’s operations ending in the future under its “no project” alternative analysis, as required by CEQA Guidelines section 15126.6, subdivision (e).
Accordingly, we reject FCSG’s argument that the FEIR was inadequate as a matter of law, requiring the Board’s approval of the project to be set aside.
2. FCSG’s “Incremental Impacts” Argument
FCSG also argues that reversal is necessary because the FEIR should have evaluated the environmental impacts of the proposed project by essentially extending the baseline annual production rate to 2021 and comparing the project impacts at that rate, as well as at the 500,000 square cubic yards rate of the proposed project, using the same emissions factors for the same future years. According to FCSG, by doing otherwise, the FEIR “fabricated a classic apples-to-oranges comparison” which was “essentially rigged” to show a decrease, rather than an increase, in future emissions, since the project projections were based upon computer modeling that anticipated future reductions in emissions resulting from cleaner fuels, better engine technology, and equipment replacement, while the baseline case factors did not include these matters. We do not agree.
As we have already discussed, the FEIR followed CEQA requirements when it determined whether impacts would be significant by comparing the project’s existing conditions with those that would exist under the proposed project. The area’s 2021 air quality setting is not an existing condition, but a hypothetical snapshot of a potential future condition. CEQA does not require that an EIR consider such a future changed condition without the project as part of its baseline analysis. (See Wal-Mart Stores, Inc., v. City of Turlock, supra, 138 Cal.App.4th at p. 290 [rejecting appellant’s argument where the appellant had “compared two snapshots of future conditions and failed to use the snapshot of existing baseline conditions”].)
In any event, as respondents point out, the comparison FCSG argues was necessary was essentially made in the FEIR’s discussion of the “no project” and “reduced production” alternatives. The FEIR stated that “[o]f the alternatives assessed in this EIR, the alternative with the least direct environmental impact is the No Project – No Subsequent Development Alternative.” This alternative would avoid all potentially significant environmental impacts that would occur under the proposed project. The FEIR also evaluated a “reduced production” alternative, which was limited to an annual production rate of 375,000 cubic yards, and concluded that it too would avoid a number of significant project effects. The FEIR stated that each of these alternatives would be superior to the proposed project with regard to air quality.
In its reply brief, FCSG argues that the FEIR compounded its error by purportedly stating in its “no project” alternative that the project impacts that would be avoided would be “less than significant and below regulatory thresholds,” which FCSG contends is factually incorrect. The cited statements, however, refer, albeit inartfully, to the avoidance of “project increases and contribution to cumulative increases, in criteria air pollutants” from the baseline model. Earlier in each paragraph cited by FCSG, the FEIR made clear that under this alternative, “[f]ollowing final reclamation of the existing use permitted area, no mining operations or development of vehicle-trip generating uses would occur on the project site.” It is obvious from this discussion that the “no project” alternative would avoid all project emissions.
FCSG argues that these discussions of alternatives are “qualitative” in nature, and therefore insufficient. However, it does not show how this was the case under the circumstances. Accordingly, its “incremental impacts” argument is not a basis for reversal of any part of the superior court’s judgment.
B. The EIR’s Analysis of the Quarry’s Air Pollution Emissions
FCSG further argues that the FEIR improperly estimated existing conditions and future air pollutant levels using standardized emissions factors drawn from computer modeling, which were shown to misrepresent reality and vastly understate the project’s impacts by actual measurements of DPM emissions taken by an expert, Dr. Phyllis Fox. According to FCSG, as a result, the FEIR failed to meet CEQA requirements in its analysis of the project impacts and mitigation measures regarding air pollution emissions. Thus, the Board abused its discretion in certifying the FEIR, requiring reversal. We disagree.
CEQA requires that an EIR “include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published.... The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives.” (CEQA Guidelines, § 15125, subd. (a).) “Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that [an EIR] adequately investigated and discussed the environmental impacts” of a project. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729.) An inadequate description of a project’s environmental setting “renders the identification of environmental impacts legally inadequate” and “precludes a determination that substantial evidence supports the [agency’s] finding[s]” regarding the significance of impacts after mitigation. (Ibid.)
The DEIR contained sections, which were incorporated into the FEIR, that discussed existing matters related to air quality in the project area. It provided descriptions of the location and climate, and identified local sources of existing air pollution and receptors that were more sensitive than others to air pollutants, such as schools, hospitals, convalescent homes, and residential areas. It also extensively discussed the applicable air quality regulations, including the state and federal emissions control standards that are expected to tighten air emissions in the years to come.
Furthermore, the DEIR, as incorporated into the FEIR, included a presentation of six years of ambient air quality measurements for a range of pollutants collected by the California Air Resources Board (CARB), and the Northern Sonoma County Air Pollution Control District at various monitoring stations near the project area, including a station in downtown Forestville. The DEIR stated that, due to similarities in local climate and wind characteristics, this “data is expected to be representative of the air quality conditions at the project site.” In a master response to comments, the FEIR further stated that “[t]he best way to determine the existing conditions is to rely on long-term monitoring data,” such as that included in the DEIR, and that “[t]his information provided the best available scientific measurement of the historic air quality in the vicinity of the project.” Thus, the FEIR’s description of the environmental setting for the project included actual monitoring data taken from the general vicinity of the project in the years leading up to the preparation of the DEIR.
However, the FEIR did not rely on this actual monitoring data to analyze the project’s impacts on air quality. It stated that “the DEIR project impact analysis was based on predicted future emission factors for diesel engines, and not on the existing monitoring data[.]” It further stated that “[t]he determination of future conditions cannot be made using only monitoring data; future conditions do not yet exist and thus cannot be measured.” Based on this modeling, the DEIR concluded, among other things, that the proposed project would generate emissions of criteria pollutants on the project site and along haul routes below the significant threshold for each pollutant, and have less than a significant impact on either project option; generate certain localized emissions at intersections in the project vicinity that would be below baseline conditions; generate DPM emissions along haul routes that would be below baseline conditions; and generate DPM emissions from on-site mobile sources that would be below baseline conditions, or which could be mitigated as the on-site sources of mobile equipment moved closer to individual off-site receptors.
In response to public comments about the DEIR, the FEIR also added a discussion of supplemental computer modeling done along the truck haul routes to estimate DPM concentrations at several receptors, including the Forestville Elementary School. The analysis was performed using a California Department of Transportation (Caltrans) model that could predict pollutant concentrations for receptors located within 500 meters of the roadway, and supported the DEIR’s conclusion that there would not be a significant health impact due to project DPM emissions from the proposed project.
FCSG argues that Fox’s study established conclusively that the FEIR’s computer modeling was so “demonstrably inaccurate” and “demonstrably flawed” as to constitute prejudicial error. Fox collected DPM data at three Forestville locations, including one residence and two areas at the Forestville Elementary school, during a six-day period “when the total truck activity along Highway 116 was close to the annual average activity reported by the [Company].” Fox concluded, after correcting her data to account for the uncertainty associated with estimating true average concentrations, that DPM daily emissions at the three sites ranged from 1.41 to 5.88 micrograms per cubic meter. FCSG argues that Fox’s study was accurate, citing statements to that effect made to the Planning Commission by a county planner and an air pollution control officer for the Northern Sonoma County Air Pollution Control District.
The record does not support FCSG’s argument that the FEIR could not rely on the information it selected for its description of the environmental setting and analysis of the proposed project’s impacts on air quality. While the FEIR analyzed the impacts of the project on air quality, such as regarding DPM emissions, based upon computer models, it did so because, as stated in the FEIR, “[t]he determination of future conditions cannot be made using only monitoring data; future conditions do not yet exist and thus cannot be measured.” In response to comments, the FEIR supplemented the initial modeling of three specific receptors, including the receptor used by Fox in her study, the Forestville Elementary School. FCSG does not explain why these decisions were improper as a matter of law.
As we have already discussed, the description of the environmental setting did in fact refer to actual monitoring data, and the FEIR stated that “[t]his information provided the best available scientific measurement of the historic air quality in the vicinity of the project.” FCSG seems to focus its objections on the use of the computer modeling to create a baseline from which to compare future impacts.
Additionally, the FEIR expressed significant concerns about the utility and accuracy of the Fox Study. The FEIR stated that “short sample periods (i.e., of less than one year) do not provide a representative basis from which to estimate annual average concentrations. [They] do not accurately account for variations in annual operations of the project site and other nearby sources, as well as variations in meteorological conditions and other factors affecting dispersion and dilution of pollutants.” The FEIR stated that “[t]he Fox Study used a 6-day sample to represent the emissions throughout the year. It is unknown as to whether this sample accurately represents the average annual project emissions. The Fox Study also made no correction for meteorological conditions to assess the annual average concentrations. As stated in Master Response No. 8, the [CARB] applies a factor of 0.08 to adjust a modeled daily average to an annual average concentration.” “The Fox Study also did not account for the substantial mandated source reductions in DPM emissions from highway haul trucks in future years, as set forth in current regulations, and discussed and considered in the DEIR.” Finally, “the cancer and non-cancer risks associated with the proposed project that were calculated in the Fox Study represent the total truck traffic in 2000 (based on methodology in that study) rather than the health risk associated with the proposed [Quarry] expansion project.” The FEIR concluded that the Fox study “was not found to contain information useful for the evaluation of project impacts.” In essence, the FEIR concluded that the Fox study was not a reliable source for actual physical conditions because of these issues.
FCSG does not seriously grapple with this FEIR critique of the Fox study. Instead, it criticizes the FEIR’s reliance on CARB model “default” and “typical” “emissions factors” to predict existing future conditions, because the FEIR assumes that these factors will decrease over time as fuels and engines become cleaner and more efficient. It cites Fox’s assertion that the monitoring of actual conditions would provide a “more accurate” estimate of project emissions than computer modeling because the “emissions factors” used in CARB computer models “are not reliable for the type and mode of operation of quarry trucks,” which are “often poorly maintained and have their engines modified.” It also points to an EIR consultant’s scope of work stating the importance of determining actual truck mix and rate of equipment replacement for DPM modeling.
FCSG’s arguments fail because they do not take into account most of the FEIR’s discussion about its decision to employ computer modeling methodology, its views of the inadequacies of the Fox study, and its resulting analyses of project impacts. Project opponents must seek review of an agency’s action in light of the whole record, and cannot ignore substantial evidence in the record which undermines their arguments. (See San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 707-708 (San Franciscans).) Also, “[d]isagreement among experts does not make an EIR inadequate.” (CEQA Guidelines, § 15151; see also San Joaquin Raptor Rescue Center v. County of Merced, supra, 149 Cal.App.4th at p. 667 [“ ‘When experts in a subject area dispute the conclusions researched by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency’s reasons for accepting one set of judgments instead of another.’ ”].)
Furthermore, regardless of these methodology differences, the FEIR concluded that the differences between its modeling and the Fox study calculations regarding DPM emissions were “reasonable.” The FEIR reviewed the estimated weekday concentrations of DPM emissions associated with all diesel trucks, as measured by the Fox study and the modeled baseline concentrations, modified to reflect the amount of truck traffic monitored in the Fox study. After correcting the Fox study from a 10-hour to a 24-hour basis, the FEIR concluded that “[t]he agreement between the Fox concentrations and the modeled values... is considered reasonable. While there are distinct differences in the Fox Study’s measured concentrations versus the predicted Baseline concentrations estimated in this EIR, the wide array of assumptions regarding number and types of trucks considered, the weather, and the methodologies in determining the DPM concentrations are all factors that strongly influence the resultant values. Ultimately, these variables do not allow for a direct comparison of the Fox Study with future annual DPM concentrations and associated long-term health risks.”
FCSG insists that “the computer model predicted drastically lower emissions than those Dr. Fox observed,” and contends that the difference between the two studies was significant because it was by as much as an order of magnitude. Regardless of the mathematical amount of difference, however, FCSG fails to explain why the FEIR’s characterization of these differences as “reasonable” was incorrect. FCSG’s analysis is also obviously faulty because it contends that the FEIR “erroneously” adjusted the Fox daily concentration figures downward after incorrectly assuming they were a 10-hour, rather than a 24-hour, average. However, the Fox study clearly supports the FEIR’s adjustment to a 24-hour average because its calculations were plainly based upon a 10-hour average.
Thus, FCSG does not establish that the FEIR’s description of the environmental setting, or its methodology and analyses of the project’s impacts on air quality issues such as DPM emissions, were inadequate as a matter of law, or even inaccurate.
Its arguments are not a basis for reversal.
IV. Consistency With the General Plan
FCSG also argues that the Board’s project approval must be set aside because of a conflict with a general plan policy about noise standards. We reject this argument as well.
A. Legal Standards
“ ‘A given project need not be in perfect conformity with each and every general plan policy.’ ” (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1509; San Franciscans, supra, 102 Cal.App.4th at p. 678 [“state law does not require... an exact match between the project and the applicable general plan”].) Consistency with a general plan does not require a precise match or exact conformity with every general plan policy; rather, cities and counties should look at whether the project is compatible with the basic policies and objectives of the applicable general plan. (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 719; San Franciscans, supra, at p. 678.)
Furthermore, it is “emphatically not the role of the courts to micromanage” general plan consistency issues. (Sequoyah Hills Homeowners Assn. v. City of Oakland, supra, 23 Cal.App.4th at p. 719.) Rather, we “accord great deference to the agency’s determination” that a project is consistent with its own plan. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 142.) “Great deference” is warranted because the body that adopts general plan policies in its legislative capacity has “unique competence to interpret those policies when applying them in its adjudicatory capacity.” (Ibid.) Because general plans “reflect a range of competing interests,” the body “must be allowed to weigh and balance the plan’s policies when applying them, and it has broad discretion to construe its policies in light of the plan’s purposes.” (Ibid.) A reviewing court’s role “ ‘is simply to decide whether [county] officials considered the applicable policies and the extent to which the proposed project conforms with those policies.’ ” (Ibid.)
Thus, “[w]e review decisions regarding consistency with a general plan under the arbitrary and capricious standard.... Under this standard, we defer to an agency’s factual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence before it.” (Endangered Habitats League, Inc. v. County of Orange (2005)131 Cal.App.4th 777, 782.)
As the case also notes, some courts have applied an abuse of discretion standard of review applicable to administrative mandamus, which is in effect the same standard. (Endangered Habitats League, Inc. v. County of Orange, supra, 131 Cal.App.4th at p. 782, fn. 3.)
However, while perfect conformity with a general plan is not required, “a project must be compatible with the objectives and policies of the general plan. [Citation.] A project is inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear.” (Endangered Habitats League, Inc. v. County of Orange, supra, 131 Cal.App.4th at p. 782, citing Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1341-1342 (FUTURE). Thus, for example, in FUTURE, the court invalidated a land use designation for a development that indisputably conflicted with a fundamental, mandatory, and specific policy limiting land use of that designation. (Id. at p. 1342.) “Issuance of a permit inconsistent with zoning ordinances or the general plan may be set aside and invalidated as ultra vires.” (Land Waste Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 958.)
B. Project Noise Levels
FCSG nonetheless argues that the project is plainly inconsistent with a specific general plan policy regarding noise, rendering the Board’s approval of the project a prejudicial abuse of its discretion. We do not agree.
The Board considered the applicable policies and the extent to which the project conformed to them. The FEIR and staff report provided extensive analysis of the project’s conformance with general plan policies regarding noise, circulation, air quality, hydrology and water quality, land use, biological resources, and aesthetics. On the basis of this analysis, the Board found that the project was consistent with the general plan.
FCSG argues that the project nonetheless violated the County’s mandatory noise standards. Table NE-2 of the Noise Element of the Sonoma County General Plan establishes quantitative “performance standards.” (Sonoma County General Plan Noise Element, § 3.1; Table NE-2.) The general plan states that “[t]he total noise level resulting from new sources and ambient noise shall not exceed the standards in Table NE-2 as measured at the exterior property line of any affected residential noise use.” (General Plan Policy NE-1c (Policy NE-1c).) Sonoma County’s Surface Mining and Reclamation Ordinance incorporates the Table NE-2 standards. (Sonoma County Code, § 26A-09-010, subd. (i).) “The maximum acceptable noise levels for all aggregate operations shall be as set forth in the noise element of the general plan. More stringent noise standards may be required as permit conditions when particular local circumstances warrant additional protection of potentially affected areas.” (Sonoma County Code, § 26A-09-010, subd. (i).)
The FEIR stated that the project would expose two residences to noise during the last third of the 20-year mining period caused by clearing and vegetation removal, which noise would occur during daylight hours over five to ten working days in the course of one or two years. The FEIR also stated that this exposure might not occur at all, “depend[ing] on exact geometry of how the operations are conducted, intervening vegetation, equipment used, and other variables not known at the present time.”
The FEIR mitigated this potential impact by requiring the Company to use the quietest equipment available, including special mufflers, preserve terrain features shielding the two residences, limit activity to weekday daylight hours, and provide notification of work beginning 30 days in advance. The Board added requirements regarding on-going noise monitoring and sound-proofing of the two residences. It found that these combined measures would mitigate the potential future impact to below the CEQA threshold of significance, and might “prevent noise levels in excess of the Table NE-2 standards.”
FCSG contends that, because the plain language of General Plan Policy NE-1c plainly states that the “total noise level resulting from new sources and ambient noise shall not exceed the subject standards” (italics added), it is a mandatory policy that the Board did not have the discretion to ignore. FCSG’s argument does not concede any weight as to whether or not the violations of the policy were uncertain, potentially solved by mitigation, and relatively de minimis, i.e., might occur for a total of five to ten days, during daylight hours, over the course of one or two years in the latter part of the project’s 20-year period.
FCSG’s argument is unpersuasive. First, assuming for the sake of argument that Policy NE-1c is mandatory, FCSG does not establish (or even seriously attempt to establish) that General Plan Policy Ne-1c is a fundamental part of the County’s general plan, as required for this court to find inconsistency. (Endangered Habitats League, Inc. v. County of Orange, supra, 131 Cal.App.4th at p. 782, FUTURE, supra, 62 Cal.App.4th at p. 1342.)
Also, the FEIR indicates uncertainty as to whether the noise levels involved would in fact violate Policy NE-1c, which is not disputed by FCSG. FCSG does not establish that the Board was required, as a matter of law, to find an inconsistency in the face of such uncertainty.
Thus, FCSG does not establish that the anticipated noise levels are, as it argues, a “clear conflict with a fundamental, mandatory, and specific general plan provision.” It is the appellant’s burden to affirmatively show error. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.) FCSG fails to do so.
C. Neighborhood Compatibility
Finally, FCSG argues that the Board’s approval of the project was based in part on an arbitrary and capricious finding that the project complied with the County’s “neighborhood compatibility” requirements. This argument also is unpersuasive.
The County’s zoning laws state that a use permit may not be issued without a finding that “the establishment, maintenance or operation of the use or building applied for will not under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort or general welfare of persons residing or working in the neighborhood or to the general welfare of the area.” (Sonoma County Code, § 26-92-080, subdivision (a).)
Accordingly, the Board found the project to be compatible on two independent grounds, they being that the general plan, the ARM plan, and the zoning code all anticipated and allowed mining on the site, and that the project would maintain environmental quality by implementing the mitigation measures identified in the EIR and the ARM plan EIR. FCSG does not discuss these general findings. Indeed, FCSG does not challenge the first ground at all, and its argument fails for this reason alone.
FCSG focuses entirely on what it contends is an inconsistency between the Board’s neighborhood compatibility findings and its CEQA findings regarding traffic. That is, the Board stated as a part of its compatibility finding that Caltrans was “expected” to approve installation of various traffic improvements, and that these improvements “are sufficient to conclude that the Proposed Project does not contravene the general welfare standard as a result of the potentially significant impacts identified in exhibit ‘B’ to this resolution.” In exhibit B, however, the County found that each of the traffic improvements was potentially infeasible due to a present lack of funding and/or the possibility that Caltrans will not grant approval, resulting in the finding that cumulative traffic impacts from the project would remain significant and unavoidable. According to FCSG, the County is trying to “have its findings both ways,” a contradictory and irrational approach that renders its neighborhood compatibility finding arbitrary and capricious.
One of the mitigation measures required the Company to pay approximately $1,348,500 in fair share contributions toward the installation of seven separate roadway improvements anticipated to be made by Caltrans.
We do not agree with FCSG’s logic. The fact that the Board found that, if the traffic improvements were not made, there would be significant and unavoidable traffic impacts was not inconsistent with the Board’s finding that Caltrans was expected to make these improvements. Therefore, we reject FCSG’s argument.
DISPOSITION
The judgment is reversed to the extent it found the FEIR sufficiently addressed the impacts of rezoning all 113.77 of the Company’s acres in the Western Expansion and Northern Expansion areas. We remand the matter to the trial court and instruct it to issue a writ of mandate requiring that an EIR be prepared and recirculated with an analysis of the possible environmental impacts of this rezoning sufficient to meet CEQA requirements before any project is approved or allowed to proceed. The judgment is affirmed in all other respects. Each party is to bear their own costs of appeal.
We concur: Kline, P.J., Haerle, J.
In this opinion, the term CEQA Guidelines refers to the regulations codified in title 14, section 15000 et seq. of the California Code of Regulations, which have been “prescribed by the Secretary for Resources to be followed by all state and local agencies in California in the implementation of [CEQA].” (CEQA Guidelines, § 15000.) “ ‘In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.’ ” (In re Bay-Delta et al. (2008) 43 Cal.4th 1143, 1163, fn. 7.)