Opinion
A146576
05-18-2017
PACIFIC SHORES PROPERTY OWNERS ASSOCIATION, Plaintiff and Appellant, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Defendant and Respondent; BORDER COAST REGIONAL AIRPORT AUTHORITY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CVPT14-1092)
I. INTRODUCTION
In December 2011, the Border Coast Regional Airport Authority (Airport Authority) certified an environmental impact report (EIR) for the Del Norte County Regional Airport Runway Safety Area Project (the airport project). In March 2014, Pacific Shores Property Owners Association (Property Owners) filed a petition for writ of mandate to prevent Airport Authority from implementing a "mitigation" plan for the airport project on property located within the Pacific Shores subdivision of Del Norte County on the ground that Airport Authority failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, §§ 21000 et seq.). The trial court denied the petition. We affirm.
Unless otherwise stated, statutory references are to the Public Resources Code.
II. FACTUAL AND PROCEDURAL HISTORY
A. Background
Airport Authority operates and manages the Del Norte County Regional Airport on behalf of Del Norte County. Prior to 2009, Airport Authority identified improvements that needed to be made to the airport runway safety area in order to comply with design standards established by the Federal Aviation Administration (FAA). In January 2009, Airport Authority submitted a mitigation planning memorandum for a "Runway Safety Area" project to its board of commissioners. The memorandum addressed the fact that the proposed improvements would require filling all wetlands within the project area, which would impact both the wetlands and wetland dependent wildlife. The planning memorandum discussed input from various affected agencies and mitigation options that had been proposed and considered. Airport Authority noted that because wetlands can attract wildlife that is hazardous to aviation operations, the FAA "strongly" recommended that "mitigation occur off site." The Pacific Shores subdivision was one of several potential mitigation sites discussed.
In February 2011, Airport Authority circulated a draft EIR for the airport project. The draft EIR contained detailed discussions of environmental impacts on wetlands in the project area and mitigation measures that would reduce the significance of those impacts. A summary of potential mitigation sites included discussion of Pacific Shores and a table summarizing the pros and cons of using that location as a mitigation site.
On December 1, 2011, Airport Authority certified the EIR and approved the airport project, recording its decision in a "Notice of Determination" (NOD) under CEQA, which was filed with the State Office of Planning and Research (OPR) that same day.
B. The Original Mandate Petition
On March 25, 2014, Property Owners filed a mandate petition alleging that writ relief was urgently required to protect the "physical environment" from an attempt to circumvent CEQA by forcing them to "bear the environmental impacts" of an airport expansion. Property Owners themselves are an association of private owners of lots in the Pacific Shores subdivision of Del Norte County, most of whom live in Southern California, where the association maintains its offices.
According to the petition allegations, the State of California had "long coveted" private properties in Pacific Shores, and the Airport Authority was engaged in yet another "attempt to obtain those properties." The alleged plan was to use funds that were secured from the FAA for the purpose of improving the county airport to purchase lots at Pacific Shores as a "putative" mitigation site for the airport project.
The petition set forth the following allegations of material fact: On December 1, 2011, Airport Authority certified an EIR (the 2011 EIR) which "noted" that the project would impact wildlife species and result in the loss of 17 acres of wetlands, but which left the "mitigation component" of the project to "be developed later." Property Owners did not receive any notice of the project prior to the certification of the 2011 EIR. Instead, their first notice of the project was in December 2012, when they inadvertently discovered that the county was considering using roads in the Pacific Shores subdivision as a possible mitigation site. Then, at a February 13, 2013 "land owner meeting," Airport Authority promised to conduct an environmental review and disclose what roads they were considering for "removal." But instead of completing that review, Airport Authority made representations that it was considering other mitigation sites, while at the same time proceeding with the "Pacific Shores mitigation" by purchasing lots in the subdivision.
Based on these factual allegations, Property Owners alleged that Airport Authority violated CEQA by failing to (1) "provide public notice of its actions to the Pacific Shores owners"; (2) provide a proper project description of the Pacific Shores mitigation plan; (3) analyze and describe environmental impacts of the mitigation project; (4) analyze and describe habitat impacts of the mitigation project; and (5) analyze alternatives to the mitigation project. In their prayer, Property Owners sought a writ of mandate compelling Airport Authority to comply with CEQA by certifying an EIR that addressed and analyzed potential environmental impacts of "the proposed Pacific Shores mitigation, with notice to [Property Owners]" of "all stages of the development of the EIR." Property Owners also sought an award of costs and attorney fees.
Along with their petition, Property Owners filed a request to prepare an administrative record. (§ 21167.6.) Contending that CEQA afforded them the right to prepare the record, Property Owners sought access to "all" documents relating to the airport project.
On April 2, 2014, the trial court set a briefing schedule and hearing date on the petition. The following week, Property Owners' counsel sent a letter to the court requesting that it vacate the briefing schedule until a complete administrative record was lodged. Airport Authority filed a formal opposition to this request, arguing that (1) Property Owners did not need an administrative record to draft their brief because they had already made the identical CEQA claim in a prior federal action that had been dismissed; (2) the expedited briefing schedule in CEQA cases is not tied to the preparation of an administrative record; and (3) Property Owners were not entitled to an administrative record of the airport project because the statute of limitations for challenging the 2011 EIR had long passed. On April 24, the trial court denied Property Owners' request to vacate the briefing schedule, but granted them a short extension to file their brief.
In their petition, Property Owners acknowledged that they filed a prior federal action against the FAA, Airport Authority, and others which included a cause of action under CEQA. According to the petition allegations, after federal claims against the FAA were dismissed, the court declined to exercise supplemental jurisdiction over Property Owners' CEQA claim.
On May 1, 2014, Airport Authority filed a demurrer to the petition on the grounds that (1) Property Owners failed to exhaust its administrative remedies and (2) the mandate petition was barred by the "strict statute of limitations" governing CEQA claims. In support of the demurrer, Airport Authority requested that the court take judicial notice of documents on a list that had been printed from a Web site maintained by the OPR. The list showed the dates of receipt and posting of notices and other documents associated with the airport project. Airport Authority maintained that this printout and the referenced documents demonstrated that it had complied with all applicable CEQA notice requirements with respect to the airport project.
C. The First Amended Petition
On May 16, 2014, while Airport Authority's demurrer was still pending, Property Owners filed a first amended petition. Property Owners added new allegations that the 2011 EIR violated CEQA because it did not include a "Mitigation and Monitoring Program." Property Owners further alleged that Airport Authority made a promise at the February 2012 meeting that it would address the Pacific Shores mitigation in an EIR "addendum," but it never did. Finally, Property Owners added allegations that Airport Authority certified a supplemental EIR for the airport project in May 2014, which also violated CEQA because it did not adequately analyze the Pacific Shores mitigation project.
On June 16, 2014, Airport Authority filed a demurrer to the first amended petition. Airport Authority argued that the petition amendments represented Property Owners' fourth attempt to state a cause of action under CEQA (including two prior attempts in their federal case). According to Airport Authority, Property Owners' latest theory rested on the false premise that mitigation measures for the airport project were "subject to a separate environmental review process under CEQA." Thus, Airport Authority argued, the new allegations did not alter the fact that the petition was barred. In support of the demurrer, Airport Authority requested that the court take judicial notice of: (1) the 2011 EIR for the airport project, particularly Appendix I which contained the mitigation plan for the project; and (2) comments and responses to the 2011 EIR that were received during the public comment period, which demonstrated that Property Owners did not participate in that process.
On June 20, 2014, Property Owners filed a motion to impose sanctions on Airport Authority and to stay the mandate proceedings until an adequate administrative record was lodged. Property Owners had filed a similar motion the previous month, but withdrew it after Airport Authority agreed not to object to its filing a first amended petition. Property Owners argued that Airport Authority could not use the statute of limitations as an "excuse" for refusing to produce an administrative record because the first amended petition challenged decisions that Airport Authority made long after the 2011 EIR was certified.
Airport Authority argued that Property Owners had no right to an administrative record because they did not exhaust their administrative remedies or timely challenge the airport project. Eventually though, Airport Authority agreed to "lodge the CEQA documents" that it relied on "in implementing the Pacific Shores mitigation aspect of the [airport project]."
On July 3, 2014, Airport Authority filed a 507-page administrative record consisting of documents pertaining to its CEQA review up to and including the December 1, 2011 NOD of its decision to certify the EIR for the airport project. Other documents in the administrative record lodged by the Airport Authority included a December 1, 2011 resolution by the board of commissioners of the Airport Authority making mandated CEQA findings; drafts of the EIR for the airport project; Board memoranda addressing such issues as the mitigation plan for the airport project and the California Coastal Commission permit process that would have to be undertaken as part of the project; and agendas and minutes at various board meetings.
On October 3, 2014, the trial court sustained Airport Authority's demurrer to the first amended petition, but granted Property Owners leave to amend. From the allegations in the amended petition and the parties' submissions, the court highlighted the following pertinent facts: the "project" at issue in this case was the airport project; the EIR for the airport project was certified in December 2011; and the NOD for the project was also filed in December 2011. In light of these facts, the court concluded that Property Owners' challenge to the 2011 EIR was barred by the 30-day statute of limitations. (§ 21167.) The court also noted, among other things, that Property Owners had not alleged facts to show that they either participated in the CEQA review process or that Airport Authority had a duty to provide some additional notice to Property Owners "beyond what it did as a matter of course in this matter."
However, the court granted leave to amend because it was not clear whether Property Owners were attempting to allege that the plan to use Pacific Shores as a mitigation site was part of the project that had already been approved under CEQA, or whether it was a post-2011 discretionary action which required an additional or supplemental EIR. Without independent analysis, the court also denied Property Owners' pending motion to sanction Airport Authority, and to stay the proceedings until a complete administrative record was lodged.
D. The Second Amended Petition
In an October 17, 2014 second amended petition, Property Owners added or refined the following material allegations. First, the "2011 EIR did not prepare, circulate, make findings upon or certify a Mitigation and Monitoring Program" as required by CEQA. (§ 21081.6.) Furthermore, the EIR was certified without any notice to Pacific Shores property owners.
Second, in December 2012, when Property Owners "inadvertently discovered" that the county board of supervisors was considering removing roads in Pacific Shores as part of a mitigation plan for the airport project, they objected to the lack of notice and CEQA violations.
Third, at the February 13, 2013 meeting, which was held to address Property Owners' objections, Airport Authority advised the public that it would disclose what roads were being considered for removal and that it would also complete an "environmental analysis" of the "Pacific Shores road removal plans" before deciding what mitigation plan to adopt for the airport project.
Fourth, Airport Authority allegedly promised to conduct an environmental review of the "Pacific Shores mitigation" plan by means of an EIR addendum. It also made similar representations to the California Coastal Commission in a February 2013 letter, which outlined "mitigation plans and specifications" for the Pacific Shores site that had been developed after certification of the 2011 EIR. But an EIR addendum was never completed, notwithstanding the potentially significant impacts on the environment. Instead, Airport Authority began executing contracts to purchase properties in Pacific Shores.
Finally, on May 8, 2014, Airport Authority certified a supplemental EIR for the airport project that "identified two other possible off-site sites for wetland mitigation." However, this CEQA document "still did not address Pacific Shores, [or] its impacts, or make an evaluation of alternatives or mitigation of impacts as required under CEQA."
With these additional factual allegations, Property Owners alleged that Airport Authority violated CEQA by failing to (1) provide public notice of its actions to Pacific Shores property owners; (2) provide a "definitive description of the Pacific Shores mitigation project"; (3) prepare a Mitigation and Monitoring Plan; (4) properly analyze project alternatives; (5) consider whether "new information" warranted a subsequent or supplemental EIR; (6) analyze potentially significant impacts of the Pacific Shores mitigation plan; and (7) consider the impact that turning roads into wetlands would have on private property rights.
In their prayer for relief, Property Owners requested a writ of mandate "vacating and invalidating the 2011 EIR" for the airport project and requiring Airport Authority to comply with CEQA "by the certification of an environmental impact report addressing all potential environmental impacts of the proposed Pacific Shores mitigation with notice to the plaintiff and all private Pacific Shores property owners of all stages of the development of the EIR, and for a return to the Court proving compliance with CEQA." Property Owners also requested such additional equitable relief as was necessary to compel compliance with CEQA, and an award of costs and attorney fees.
On October 28, 2014, Airport Authority filed a demurrer to the second amended complaint on the same grounds as its prior demurrers. On November 21, the trial court overruled that demurrer.
E. The Augmentation to the Administrative Record
On December 15, 2014, Property Owners filed their third motion to stay the proceedings, and to impose sanctions on Airport Authority, this time arguing that the administrative record was incomplete because it did not include any documentation of actions or decisions that occurred after the 2011 EIR was certified. On January 22, 2015, the court denied the motion for a stay and sanctions, but ordered Airport Authority to augment the administrative record. The court confirmed that the second amended petition sought relief based on post-2011 events, but concluded that the "need to include post[-]2011 material was not clear until the demurrer [to the second amended petition] was overruled."
On February 22, 2015, Airport Authority lodged an augmentation to the administrative record, consisting of five binders of documents pertaining to the planned mitigation at Pacific Shores that were generated between February 2013 and August 2014. In a pleading accompanying the materials, Airport Authority stated that it was lodging the "existing 'plans and specifications' " for the mitigation component of the airport project that Property Owners had identified in their second amended petition. Airport Authority also stated that "[i]n providing the requested documents respondent does not admit and in fact rejects, that the documents constitute 'new information' within the meaning of § 21166[, subdivision] (c)."
On March 9, 2015, Property Owners filed another motion to sanction Airport Authority and to stay proceedings until a complete administrative record was lodged. The trial court denied this motion on April 10, concluding that Property Owners relied on boilerplate arguments unrelated to the facts of this case and failed to provide any clear indication of what documents were missing or what additional information they expected to be produced.
On April 23, 2015, Property Owners filed a supplemental brief in which they argued that Airport Authority was refusing to lodge a complete administrative record in an ongoing effort to hide the fact that the airport project violated CEQA. Furthermore, they argued that the evidence in the augmentation was proof of significant new information and circumstances requiring a new or supplemental EIR because it confirmed that Airport Authority did not really settle on a mitigation plan for the project until after the 2011 EIR was certified. Property Owners also requested that the court augment the administrative record with additional evidence attached to their brief as exhibits, which included meeting and agenda materials from several board meeting conducted by Airport Authority in 2013 and 2014, and a copy of a March 2014 draft supplemental EIR for the Airport Project.
G. The Trial Court's Ruling
At a May 15, 2015 hearing, this matter was submitted for decision without argument pursuant to a stipulation that the court would decide the case based on the pleadings and the administrative record.
1. The Tentative Rulings
In a June 19, 2015 order, the court set forth tentative rulings on two issues: (1) whether the case was barred, as Airport Authority argued; and (2) whether Airport Authority violated CEQA requirements pertaining to notice and mitigation, as Property Owners claimed.
First, the court concluded that, based on the pleadings and the administrative record, it could not "determine" that Property Owners were time-barred from filing this action. The court found that Property Owners failed to carry their burden under section 21177 of establishing that they exhausted their administrative remedies. However, Property Owners would be relieved of that burden if Airport Authority failed to provide public notice of the CEQA proceedings for the airport project pursuant to one of the methods approved in section 21092, and the administrative record did not demonstrate that such notice had been provided.
Turning to the statute of limitations, the court found that the record showed that the NOD to certify the EIR for the airport project was "published" in December 2011; a public hearing on the project was held on that date; and the mitigation at Pacific Shores was discussed multiple times at various public meeting prior to that date. The record also established that Property Owners did not file their action until March 2014, "well past the time limits promulgated by the code." Nevertheless, the court found that it could not conclude that the action was time-barred absent proof that Airport Authority had complied with section 21092 in the first instance.
Thus, the court addressed the merits of Property Owners' substantive claim under CEQA, but it ultimately concluded that Property Owners failed to establish any decision Airport Authority made in connection with the airport project constituted an abuse of discretion in the sense that it was either arbitrary, capricious or entirely lacking in evidentiary support. (Citing California Oaks Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227.) In reaching this conclusion, the court found the record established that: (1) Airport Authority "did conduct an environmental analysis" of the Pacific Shores mitigation site; (2) mitigation development, which was "still ongoing," appeared to be in compliance with the original 2011 EIR for the airport project; (3) Airport Authority did prepare a Mitigation and Monitoring Plan; (4) Airport Authority did analyze alternative mitigation sites; and (5) the Mitigation and Monitoring Plan was not new information that required a subsequent or supplemental EIR.
At the conclusion of the June 2015 order, the court stated: "It appears to the Court that [Airport Authority] inadvertently has not lodged any of the post[-]2011 Supplemental Administrative Records disclosed to [Property Owners]. As such this ruling is tentative. The matter is set for July 10, 2015 at 9:00 am in Department 2 to determine if such records were filed." The court set a hearing for July 10, 2015, to address this issue.
2. The Supplement to the Administrative Record
On July 9, 2015, Airport Authority filed a "Supplement to the Administrative Record" and accompanying declaration. Airport Authority acknowledged that when it prepared the administrative record, it did not include documentation that it complied with section 21092 prior to certifying the 2011 EIR, and it sought leave to supplement the record with that pertinent evidence. The supplemental filing included evidence that a "Notice of Availability and Public Hearing of the Del Norte County Regional Airport Runway Safety Area Improvement Project Draft Environmental Assessment and Environmental Impact Reports" (hereafter, the NOA) was published in "The Daily Triplicate" newspaper on February 26, March 2, March 6 and March 9, 2011. Airport Authority also produced an "Affidavit of Publication" executed by a clerk from The Daily Triplicate attesting to the fact that the NOA was published in The Daily Triplicate on the above-referenced dates and that The Daily Triplicate has been adjudged by the court as a "newspaper of general circulation" in the county of Del Norte.
3. The Final Decision and Judgment
At the July 10, 2015 hearing, there was no discussion about whether the post-2011 supplemental administrative records had been properly lodged with the court. The court acknowledged receipt of Airport Authority's July 9 Supplement to the Administrative Record and confirmed that Property Owners had also received it, but there was no substantive discussion about that issue either. Instead, when the court invited comment from the parties, Airport Authority took the position that the record was complete, but offered to produce additional documents if provided with guidance as to what was allegedly missing. Property Owners' counsel objected to "any further supplementing of the record," but also "agree[d] to what's been provided." The court responded by asking counsel to confirm that Property Owners accepted the administrative record that had been provided. Instead, counsel renewed his objection that "the record is not complete," arguing that "It's not our job to make it complete. It's the job of the agency." In light of this objection, the court took the matter under submission.
On July 24, 2015, the court filed a "Final Decision on Writ of Mandate," which stated in pertinent part: "[Property Owners] object to any additional documents being added to complete the administrative record and thereby waive[] any further consideration of the additional record by the Court. Therefore[,] the tentative ruling shall stand as the order of the Court." Judgment denying the writ of mandate was filed August 24, 2015.
III. DISCUSSION
Property Owners contend they are entitled to mandate relief because they established that Airport Authority violated CEQA by (1) certifying the 2011 EIR; (2) failing to prepare a supplemental or amended EIR specifically addressing the adverse impacts of using Pacific Shores as a mitigation site for the airport project, and (3) refusing to lodge a complete administrative record.
"In reviewing a petition challenging the legality of a lead agency's actions under CEQA, our role is the same as the trial court's. We review the agency's actions, not the trial court's decision, and our inquiry extends 'only to whether there was a prejudicial abuse of discretion' on the part of the agency. [Citations.] An abuse of discretion is established if the agency has not proceeded in a manner required by law or if its factual determinations are not supported by substantial evidence. [Citations.] For purposes of CEQA, substantial evidence "means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' [Citation.]" (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 923, fn. omitted.)
A. The 2011 EIR
Property Owners contend that Airport Authority violated CEQA by certifying the 2011 EIR without conducting a sufficient analysis of the potentially significant impacts of using Pacific Shores as a mitigation site for the airport project. We reject this claim without addressing its merits because Property Owners' challenge to the 2011 EIR is barred by the exhaustion of administrative remedies doctrine and the statute of limitations.
1. The Exhaustion Doctrine
" 'The exhaustion of administrative remedies doctrine ". . . operates as a defense to litigation commenced by persons who have been aggrieved by action taken in an administrative proceeding which has in fact occurred but who have failed to 'exhaust' the remedy available to them in the course of the proceeding itself." [Citation.] As our Supreme Court has stated it: "In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act." [Citation.] The rule is a jurisdictional prerequisite in the sense that it "is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts." [Citations.]' [Citation.]" (Defend Our Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570, 580-581 (Defend Our Waterfront).)
The exhaustion of administrative remedies rules for CEQA are codified in section 21177. Section 21177, subdivision (b) states: "A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination pursuant to Sections 21108 and 21152." To satisfy this requirement, the petitioner must have objected to the project on some ground before the agency made its decision. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 711 ["petitioner itself need only have raised some objection before the agency [citation]; if it has, it may then litigate any issue raised before the agency by anyone" (italics omitted)].)
Property Owners failed to establish that they complied with section 21177, subdivision (b). To the contrary, their petition alleges they were not aware of the airport project prior to certification of the 2011 EIR. This averment compels the conclusion that Property Owners did not exhaust their administrative remedies by participating in the public hearing process that was conducted before Airport Authority certified the 2011 EIR and filed its NOD on December 1, 2011.
Section 21177, subdivision (e) provides that a petitioner is exempt from the exhaustion requirement if "there was no public hearing or other opportunity for members of the public to raise [CEQA] objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law." As noted above, the trial court made a tentative ruling that it could not foreclose the possibility that Property Owners were exempt from the exhaustion requirement under section 21177, subdivision (e) because, while the administrative record showed that Airport Authority conducted public hearings prior to certification of the 2011 EIR, the court found no evidence that notice of those hearings was given pursuant to one of the methods set forth in section 21092.
Section 21092 states that when a lead agency elects to prepare an EIR for a project, it must "provide public notice of that fact within a reasonable period of time prior to certification of the [EIR]" pursuant to one of three approved methods: publication in a newspaper of general circulation within the area affected by the project; posting of notice on and off-site in the affected area; or direct mailing to owners and occupants of property contiguous to the project site.
As noted above, prior to the final decision on Property Owners' petition, Airport Authority filed a supplement to the administrative record consisting of documentation that it published the NOA for the airport project in a local newspaper of general circulation on several occasions months before it made its decision to certify the final EIR for the airport project. There is no dispute on appeal that this evidence establishes that Airport Authority complied with section 21092. Therefore, we find no basis in this record for concluding that Property Owners were exempt from the exhaustion of administrative remedies requirement.
2. The Statute of Limitations
CEQA "seeks to ensure that public agencies will consider the environmental consequences of discretionary projects they propose to carry out or approve. On the other hand, the Act is sensitive to the particular need for finality and certainty in land use planning decisions. Accordingly, the Act provides 'unusually short' limitations periods [citations] after which persons may no longer mount legal challenges, however meritorious, to actions taken under the Act's auspices." (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.)
"Section 21167 establishes the usual limitations periods for CEQA challenges." (May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1322.) Under those provisions, "CEQA review must generally be sought within 35 days of the filing of a facially valid NOE [citations] or within 30 days of the filing of a facially valid NOD [citations]." (Id. at pp. 1322-1323.)
In this case, Airport Authority certified the 2011 EIR and filed its NOD on December 1, 2011. Thus, under section 21167, subdivision (c), any action or proceeding alleging that the 2011 EIR did not comply with CEQA had to be filed within 30 days of the filing of the NOD, i.e., by December 31, 2011. Because Property Owners waited until March 2014 to file their mandate petition, the statute of limitations bars them from challenging the 2011 EIR.
3. The Project Description
Property Owners contend they are not barred from challenging the 2011 EIR because, although Airport Authority may have complied with the procedural requirements for giving public notice under CEQA, that notice was defective. While its argument is vague, Property Owners appear to pursue two distinct theories, both of which are flawed.
First, Property Owners contend the NOD that was filed on December 1, 2011, did not trigger the running of the 30-day statute of limitations because it contained a material defect. "Several cases have made an exception to the strict limitation periods in section 21167 when the notice of determination is materially defective." (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 52 (Committee for Green Foothills).)
When an agency has made the final determination to certify an EIR, the contents and filing procedures required for the NOD are set forth in section 15094 of the CEQA Guidelines. "Among other things, the NOD must identify and briefly describe the project; identify the lead agency and responsible agency (if applicable); state the date of project approval and the agency's environmental impact determination; report that a negative declaration, mitigated negative declaration or EIR has been adopted, and give the address where it may be examined; and state whether mitigation measures were required as a condition of approval. [Citations.]" (Committee for Green Foothills, supra, 48 Cal.4th at p. 52; see also Guidelines, § 15094, subd. (b).)
All references to "Guidelines" are to the CEQA Guidelines promulgated by the state's Resources Agency pursuant to section 21083. (Cal. Code Regs., tit. 14, § 15000 et seq.) " 'In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.' [Citation.]" (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, fn. 4.) --------
In the present case, the NOD for the airport project provided general information about the project, including its formal project title ("Del Norte County Regional Airport (CEC) Runway Safety Area Projects"), its location ("Del Norte County Reginal Airport, Jack McNamara Field[,] County of Del Norte"), and the following "Project Description": "To bring Runway Safety Areas at Del Norte County Regional Airport into compliance with current FAA design standards and as required for airports certificated under 14 CFR Part 139 as required by the 2006 Department of Transportation Appropriations Act (Public Law [PL]No. 109-115)."
The NOD also stated that Airport Authority had approved the airport project after concluding it would not have a significant effect on the environment; that an EIR was prepared for the project pursuant to CEQA; that mitigation measures were made a condition of the approval of the project; that findings were made pursuant to the provisions of CEQA; and that a final EIR and record of the project approval was available to the general public.
Property Owners do not dispute that the NOD contains every item of information required by section 15094 of the Guidelines. Nor do they contend that the information provided was inaccurate. Instead, their claim is that the project description was incomplete because it did not "state anything about Pacific Shores-or any other off-site mitigation." However, Property Owners do not identify authority which requires the NOD to specify the location of a mitigation site for the project.
In Committee for Green Foothills, supra, 48 Cal.4th 32, the Supreme Court expressly "decline[d] to impose additional requirements for a NOD beyond those described in the Guidelines." (Id. at p. 53.) Section 15094, subdivision (b)(6) of the Guidelines requires only that the NOD state "[w]hether mitigation measures were made a condition of the approval of the project, and whether a mitigation monitoring plan/program was adopted." The NOD of the 2011 EIR satisfied this requirement by stating that mitigation measures were required and that a mitigation reporting or monitoring plan was adopted.
Property Owner's second argument is that the public never received CEQA-compliant notice of the airport project because the 2011 EIR itself contains a legally deficient project description. According to Property Owners, "[i]f the 2011 EIR did mention Pacific Shores, it did not describe the acquisition project, its impacts or its alternatives." This contention is based on a false premise about the nature of the CEQA project that was analyzed in the 2011 EIR. There is simply no evidentiary foundation for Property Association's characterization of that project as a Pacific Shores acquisition project. The record evidence establishes that the 2011 EIR was designed to explore the environmental impacts of an airport safety improvement project. Pacific Shores was a potential site for mitigating the environmental impacts that this project would have on wetlands at the airport site. But there is no basis for Property Owners' assumption that restoring wetlands at Pacific Shores was the hidden objective or true subject of the project approved via the 2011 EIR.
Property Owners mistakenly rely on McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 (McQueen). The issue in McQueen was whether a regional district's plan to acquire property contaminated with PCB was exempt from CEQA review. The district argued that the court should not address the matter because the petitioner had not objected to the acquisition during public hearings. However, the McQueen court found that the exhaustion of administrative remedies requirement did not apply for the following reason: "We consider petitioner's situation tantamount to a lack of notice due to the incomplete and misleading project description employed by the district. While there is evidence the district gave notice of the proposed property acquisition, there is no evidence that the notice mentioned the acquisition of toxic, hazardous substances." (Id. at p. 1150.)
McQueen bears no similarity to the present case. The agency in that case did not complete an EIR, but instead attempted to evade public scrutiny or judicial review of a decision to invoke a CEQA exemption with respect to its acquisition of contaminated property by withholding the fact that the property was contaminated. In the present case, Airport Authority conducted an environmental review of the airport project, which included public notice, public hearings and a full-blown EIR, and Property Owners fail to substantiate allegations that the project was something other than what it purported to be.
B. Subsequent Events
As our factual summary reflects, Property Owners were granted leave to amend the first amended petition in order to pursue their new theory that events which occurred after the 2011 EIR was certified triggered obligations to conduct an additional CEQA review of the plan to use Pacific Shores as a mitigation site for the airport project. On appeal, Property Owners contend they proved that theory.
"After an initial EIR is certified, there is a statutory presumption against additional environmental review. [Citation.]" (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 934.) This presumption is codified in section 21166, which "prohibits agencies from requiring additional environmental review after an initial EIR is certified unless certain specified conditions are met." (Id. at p. 935; see also Melom v. City of Madera (2010) 183 Cal.App.4th 41, 48-49 (Melom).)
Section 21166 states: "When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available."
Section 21166 " 'provides a balance against the burdens created by the environmental review process and accords a reasonable measure of finality and certainty to the results achieved. [Citation.] At this point, the interests of finality are favored over the policy of favoring public comment, and the rule applies even if the initial review is discovered to have been inaccurate and misleading in the description of a significant effect or the severity of its consequences. [Citation.]' [Citation.] [¶] " '[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [citation], and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.' [Citation.]" (Melom, supra, 183 Cal.App.4th at p. 49.)
Property Owners contend that circumstances did change enough to justify requiring an additional environmental review. According to Property Owners, Airport Authority did not have an "actual" mitigation plan until March 2014, and that plan along with other "supplemental" information constitutes new information or a substantial change to the airport project, which required Airport Authority to undertake a new or supplemental EIR.
The allegedly new or changed information consists of the following events: In October 2013, Airport Authority selected "mitigation option(s)" for the airport project, which entailed pursuing "Crescent City Marsh" or "Bay Meadows" as an additional site (not an alternative site) for restoring wetlands in order to mitigate the impacts of the airport project. In March 2014, Airport Authority secured studies regarding the additional mitigation sites. On May 8, 2014, Airport Authority certified a supplemental EIR for the Bay Meadows site, after conducting a public hearing at which no comments were made.
Property Owners fail to explain why these events warranted additional environmental review of the impacts of using Pacific Shores as a mitigation site for the airport project. On its face, the fact that Airport Authority began to explore additional mitigation sites may have triggered CEQA issues with respect to those sites, but it was not new information with respect to the plan to use Pacific Shores as a mitigation site.
Property Owners contend that, regardless whether these events constituted a substantial change or new information, Airport Authority violated CEQA by failing to make a formal determination under CEQA as to whether a new or supplemental EIR was required. Accepting this argument would mean that every decision an agency makes during the implementation stages of a CEQA project requires a formal assessment of whether to conduct another environmental review. Such a rule is inconsistent with section 21166 and the presumption of finality once an EIR has been certified.
Property Owners rely on City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005 (City of San Jose). That case involved a redevelopment project which included the provision of utility services to the project area. The city certified an EIR for the project that was based on the conclusion that water services to the area would be provided by Great Oaks, a company that owned property rights in the " 'PUC certified [water] service area,' " and had preexisting plans to extend its system into that area. (Id. at p. 1009.) However, four years after the EIR was certified, the city committed itself to providing all water services for the project and then filed an eminent domain complaint against Great Oaks. The trial court granted summary judgment to Great Oaks, finding that (1) the city failed to provide a written summary of the basis for its determination regarding the value of the subject property; and (2) the EIR was defective because it did not address the effects of the city's control of water services for the redevelopment project. (Id. at pp. 1010-1011.)
Affirming the judgment, the City of San Jose court made several pertinent findings with respect to CEQA. First, Great Oaks' challenge was timely because it had "never challenged the EIR as originally adopted; rather it objected to the fact that no subsequent or supplemental EIR was prepared to consider the environmental impact of the City's substitution of itself for Great Oaks as the provider of water services in the [redevelopment] area." (City of San Jose, supra, 192 Cal.App.3d at p. 1015, italics added.) Second, Great Oaks produced evidence that the decision to substitute the city as the water service provider "substantially changed the nature of the project by changing the sources of the water supply for the project." (Ibid.) Third, the EIR "literally did not address the revised project" that the city adopted in 1983, including the potentially adverse impacts "wrought by the change in the water supply system" from one based on preexisting wells to the city's plan to create new wells in an area that was "already known to have underground contamination of the water supply." (Id. at pp. 1016-1017.) Under these facts, the court concluded, the city "violated CEQA by failing to make a determination whether a subsequent or supplemental EIR was required by the redesign of the project, or whether an addendum to the final EIR would suffice." (Id. at p. 1017.)
City of San Jose undermines Property Owners' claim rather than supporting it. Unlike the Great Oaks Water Company, Property Owners' bootstrap contentions are, in reality, untimely challenges to the original EIR. For example, the record does not contain evidence supportive of Property Owners' latest theory that Airport Authority redesigned the airport project after the EIR was certified. In addition, to the extent the decision to pursue additional mitigation sites constituted a substantial change (something we do not find), Airport Authority did prepare a supplemental EIR in May 2014. However, there is no basis for concluding that the events that led to the completion of that supplemental EIR had anything to do with the environmental impacts of using Pacific Shores as a mitigation site as addressed in the 2011 EIR.
For all these reasons, Property Owners have failed to carry their burden of establishing that new information or a substantial change required Airport Authority to undertake additional environmental review of mitigation measures adopted in the 2011 EIR.
C. The Administrative Record
Property Owners contend that (1) Airport Authority violated CEQA by refusing to produce an administrative record which included information that it acquired after 2011, and, therefore, (2) "approval" of the airport project must be "vacated" until the "whole" administrative record is "certified properly and lodged."
Airport Authority has always maintained that Property Owners' CEQA claim is untimely. Nevertheless, it filed an administrative record of the CEQA proceedings that culminated in the decision to certify the 2011 EIR. Then, after the demurrer to the second amended petition was overruled, Airport Authority filed a supplemental administrative record which consisted of reports and documents generated after 2011. Thus, the record refutes Property Owners' factual contention that the administrative record did not include post-2011 documents.
Furthermore, Property Owners' legal theory that they can invalidate the 2011 EIR by establishing a deficiency in the administrative record is not supported by citation to any relevant statute or case law. "When an agency prepares and certifies the administrative record, it exercises no discretion and employs no specialized expertise; it performs a ministerial task when it applies the mandatory language in section 21167.6, subdivision (e). [Citations.] Ordinarily, when an agency performs a ministerial task, deferential judicial review is not appropriate. [Citation.] As a result, when a trial court applies section 21167.6, subdivision (e) and determines the contents of the administrative record, it does so in its role as a trier of fact, not a court of review, and it resolves the factual and legal disputes between the parties without deference to the agency's certification. [Citation.]" (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 65, questioned on other ground in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 451.) In light of the respective roles of the agency and trial court, appellate courts review the trial court's determination regarding the scope of the administrative record, not the agency's decision about what to include in that record. (Ibid.)
In this case, the trial court denied Property Owners' fourth request to stay these proceedings, and to impose sanctions on Airport Authority because it found that Property Owners' contentions about an allegedly incomplete record were vague, conclusory and "just a blanket rehashing of [the] code." " '[A]ppellate review of a trial court's determinations regarding the scope of the administrative record is subject to the principle that appellate courts presume the trial court's order is correct. [Citation.]' " (San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 531.) Here, Property Owners have not overcome that presumption. They do not identify any information which should or should not have been included in the record.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.