Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County, No. 08-CECG-02901, D. Tyler Tharpe, Judge.
Herum Crabtree, Steven A. Herum, Natalie M. Weber, Kerri K. Foote, for Plaintiff and Appellant.
John P. Doering, County Counsel, Thomas E. Boze, Deputy County Counsel, for Defendants and Respondents.
Remy, Thomas, Moose & Manley, Whitman F. Manley, Sabrina V. Teller, Jason W. Holder; Jarvis, Fay, Doporto & Gibson, Daniel P. Doporto and Rick W. Jarvis, for Real Parties in Interest and Respondents.
OPINION
Wiseman, Acting P.J.
The County of Stanislaus and its Redevelopment Agency (collectively, the county) are in the midst of a planning process for the redevelopment of Crows Landing Naval Air Facility (Crows Landing), a former military base now owned by the county. On April 22, 2008, the county’s board of supervisors approved a memorandum of understanding (MOU) between the county and a developer, PCCP West Park, LLC (West Park), committing the parties to negotiate in good faith toward the ultimate approval and building of a master-planned industrial development covering 4,800 acres and incorporating Crows Landing. Apart from the agreement to negotiate in good faith, the MOU did not bind the parties. A detailed description of the development—representing the parties’ ultimate goal—was attached to the MOU in the form of a draft Disposition and Development Agreement (DDA), which the parties intended to work toward executing. The approval of the MOU was not preceded by any environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). The city council of Patterson (Patterson), a town a few miles away from Crows Landing, unsuccessfully filed a petition in superior court for a writ of mandate to rescind the MOU, and now appeals.
The question of whether approval of the MOU without prior environmental review violated CEQA turns on two subsidiary questions: whether the plans for the Crows Landing development were sufficiently definite and detailed to constitute a “project” within the meaning of the law, and, if so, whether the county’s action on the MOU, in light of all the surrounding circumstances, was a commitment to proceed with the project sufficient to constitute an “approval” of it within the meaning of the law.
There are plausible arguments for Patterson’s position on each of these questions, but we will not decide either of them. In October 2008, while Patterson’s writ petition was pending in the superior court, the MOU expired by its own terms. The parties did not act to extend the MOU, and in January 2009, after the trial court denied the writ petition, the last of three possible 30-day-extension periods ended. For this reason, the appeal is moot and we order that it be dismissed.
FACTUAL AND PROCEDURAL HISTORIES
Crows Landing was decommissioned and closed by the National Aeronautics and Space Administration (NASA) in 1996. In 2001, the county adopted a reuse plan under which the base would become a general aviation airport and a business park. For the airport component, county staff carried out an initial survey pursuant to CEQA and prepared a mitigated negative declaration. The administrative record does not show whether the county ever certified the mitigated negative declaration. The federal government conveyed 1,352 acres, comprising all but a fraction of the property, to the county in 2004.
In 2005, the county designated Crows Landing a redevelopment project area and adopted a preliminary redevelopment plan drafted by the Redevelopment Agency. The county hired Environmental Science Associates in 2006 to “identify proposed concepts and land uses” for Crows Landing. Environmental Science Associates identified three concepts, which differed in the manner in which they employed the existing runways in the proposed new airport and in the amount of land that would be available for nonairport uses. All three concepts anticipated the development of an airport, industrial or warehouse facilities, a business park, and rail facilities. The county adopted concept number three, partly because it “provide[d] the best configuration to bring in a rail facility.” It issued a request for proposals (RFP), seeking plans by developers to build a development consistent with concept three.
The county received two responses to the RFP, one from West Park and the other from a company called Hillwood. One major difference between the two proposals was that West Park’s focused on development of a “short haul” rail terminal and rail link, requiring construction of tracks and other improvements costing more than $400 million, for transporting shipping containers between Crows Landing and the Port of Oakland, while the Hillwood proposal focused on truck-based distribution facilities and the airport. The county obtained an independent expert analysis which determined that a short-haul rail facility at Crows Landing would probably not be economically viable, at least in the short term. West Park principal Gerry Kamilos submitted a response, saying the expert “showed a lack of vision” and should have taken account of industrial development that will take place at Crows Landing over the next 15 to 20 years, eventually supplying business for the rail line and terminal.
The Patterson City Council passed a resolution opposing the West Park proposal. Among other things, the resolution objected to the potential increase in rail traffic through Patterson. On the motion of Becky Campo, mayor of Patterson, an entity called the Crows Landing Steering Committee recommended that the county accept the Hillwood proposal. Congressman Cardoza and several state legislators, however, sent the county letters supporting the short-haul rail feature emphasized in the West Park proposal. On February 27, 2007, the county’s board of supervisors voted to approve an exclusive 12-month negotiating agreement with West Park. On March 20, 2007, the board of supervisors passed a resolution supporting the short-haul rail feature and stating an intention to plan for the allocation of 150 acres of county property for the terminal.
The planning process advanced during the 12-month period. In June 2007, the county and West Park executed a predevelopment agreement. This document described the proposed development as consisting of 1,284 acres of industrial development and 240 acres of airport development within the former base, plus 3,276 acres of commercial/industrial development on farmland surrounding the former base. The predevelopment agreement delineated steps the parties would take in formulating a project description “of sufficient detail to provide the Board of Supervisors information to determine if it is in the County’s best interest to proceed with implementation” and in preparing a DDA “suitable for consideration” by the board. The county and West Park next prepared a series of project studies, relating to such matters as geological hazards, wetlands and other environmental issues, utilities, traffic, and potential costs and benefits of a short-haul rail link and terminal. The traffic analysis gives an idea of the size and scope of the proposed development. It assumed that phase 1 of the development, occupying about 1,500 acres, would serve 8,800 workers and generate 33,273 daily trips, while the fully built 4,800-acre development would serve 37,650 workers and generate 141,167 daily trips. The county approved a boundary map for the development, enclosing an area of 4,800 acres. It decided it would retain ownership of the 1,521 acres comprising the former military base.
The county also decided, during the 12-month negotiating period, to apply to the California Transportation Commission (Commission) for state bond funding for the rail link and terminal. In its application, the county requested $26 million in Trade Corridor Infrastructure Fund bond money. The application claimed the link and terminal would be built and in operation by 2012. The board of supervisors directed its chairman to write a letter to the Commission expressing the county’s support for the rail feature. The county increased its allocation of Crows Landing land for the terminal to 170 acres and presented this allocation to the Commission as “an in kind contribution toward implementation of the project” worth $12.5 million. The application affirmed that the county was “committed to the project,” and that the decision to “commit” the land represented “a huge, local public commitment to this project.”
Responding to questions from the Commission, the county and West Park acknowledged that there was “some risk” in “starting design at the same time as environmental review,” since “the design may need to be modified based on the environmental review.” They claimed, however, this risk was “minimal.” They estimated that CEQA review would begin in the third quarter of 2008 and end in the fourth quarter of 2009. The Commission approved $22.4 million in bond funds on April 10, 2008, conditioned on the county’s entry into a memorandum of understanding with West Park and the Union Pacific Railroad. The county also undertook to obtain bond funds from the California Air Resources Board (CARB), urging that entity to change its guidelines to allow the West Park development to qualify. The county told CARB it had “committed land” for the rail terminal, which was “to be developed as part of our redevelopment of” Crows Landing.
The 12-month exclusive negotiating period culminated in the presentation of the MOU to the board of supervisors. The county’s outside counsel explained that, although “the deal points for the [DDA] to implement the Board’s objectives” for the development could now be “finalized,” the “formal DDA cannot be adopted until the project redevelopment plan is adopted” later in the process. The MOU, therefore, would set forth the deal points as if they were tentative, but these same deal points “would then become the formal DDA that would be adopted later.…”
The MOU expressed the parties’ intention to enter into an attached DDA while at the same time stating that the terms of the MOU were nonbinding and subject to modification by the parties. The MOU did, however, expressly bind the parties to negotiate in good faith toward agreement on approval and construction of the development.
“1. Purpose of this MOU.
This MOU is intended as an expression of preliminary points of agreement amongst the Parties. The Parties expressly acknowledge and agree that: (i) the terms and conditions set forth in this MOU are subject to the approval of, or modification by, the governing boards of the County and Agency; and (ii) following approval of this MOU by the County and Agency, the Parties intend to execute a DDA and leases with terms substantially in the form and content attached hereto and set forth in Exhibit B (as such terms may be modified pursuant to the direction of the Agency Board of Directors and the written agreement of the Parties).
“2. Preliminary Terms; No Obligation to Proceed.
Nothing in this MOU creates a binding obligation, and no binding agreement will exist unless the Parties sign final and definitive agreements. Each Party expressly acknowledges and agrees that this MOU creates no obligation on the part of any Party to: (i) enter into a DDA; (ii) grant any approvals or authorizations required for the Project; (iii) agree to any specific terms or obligations; (iv) provide financing for the Project, or (v) proceed with the development of the Property. All of the terms set forth in this MOU are preliminary in nature and subject to approval by the County, Agency and Developer; and memorialization in an executed DDA and related documents including but not limited to lease documents. The Parties acknowledge that the Project may be revised as the environmental, financial and planning processes proceed and, provided that Agency and County approve of such revisions, that the DDA and other related documents may be modified. The provisions of this section are hereby incorporated into each and every section of this MOU as though set forth in their entirety in each such section.
“3. Good Faith Efforts to Negotiate.
This MOU only binds the Parties to negotiate in good faith for the purposes specified herein. County, Agency and Developer shall use reasonable efforts to complete negotiations for and preparation of a DDA and related documents including but not limited to lease documents which shall set forth the terms and conditions governing disposition and development of the Property by Developer. Furthermore, the Parties shall use reasonable efforts to obtain any third-party consent, authorization, or approval required in connection with the transactions contemplated hereby.”
The MOU further stated that “[a]ny approval by County or Agency shall be subject to and in full compliance with the California Environmental Quality Act.…” The MOU provided that it would terminate 180 days after its effective date, April 22, 2008, unless terminated earlier or extended. It could be extended for up to three, 30-day terms by agreement of the parties. The 180-day period ended in October 2008, and it is undisputed that the parties have not extended the agreement.
The MOU contemplated that the parties would negotiate toward construction of the project as described in the DDA and other attached documents. According to the DDA, this would involve the county leasing the land to West Park, and West Park building a rail terminal, airport, and hundreds of thousands of square feet of commercial and industrial buildings, among other things. The DDA stated that the county will complete CEQA review after the DDA is executed, but that the county can still reject or modify the project or impose mitigation measures after completing CEQA review.
Dozens of letters, e-mail messages, and petitions supporting and opposing the development were before the county when it made its decision on the MOU. Among the concerns expressed by opponents were that the development would take agricultural land out of production, direct economic growth away from the county’s cities, cause traffic congestion, result in a disruptive increase in railroad usage, and lack an adequate water supply. Institutional opposition came from the West Stanislaus Resource Conservation District and the City of Newman, as well as Patterson. Patterson commissioned an independent analysis that concluded there was little evidence of sufficient demand to support either the short-haul rail feature or the thousands of acres of industrial and commercial development.
The record before the county also included a complex set of questions from the Metropolitan Transportation Commission (MTC) to West Park about the feasibility of short-haul rail between Crows Landing and the Port of Oakland, and West Park’s effort to answer these questions. News reports in the record indicated that the MTC decided against including any assistance to the Crows Landing plan in its application for state bond funding and that the Port of Oakland announced that short-haul rail development is not among its immediate priorities.
The board of supervisors approved the MOU at its meeting on April 22, 2008. The specific staff recommendations the board approved stated:
“1. Approve the Memorandum of Understanding (MOU) incorporating essential terms and conditions of a [DDA] with PCCP West Park to be formally adopted upon future adoption of a Redevelopment Plan on the County owned property.
“2. Authorize the Chair of the Board of Directors to sign the Memorandum of Understanding (MOU).
“3. Authorize the Executive Director [of the Redevelopment Agency] to sign the Memorandum of Understanding (MOU).
“4. Direct staff to initiate preparation of a Redevelopment Plan for the project area.”
The MOU itself states that the county also approved a “Developer’s Master Plan” the same day, and that this plan is attached to the MOU as an exhibit, but no such document is attached to the copy of the MOU included in the administrative record before us. In the place where it ought to be, a set of copies of PowerPoint slides promoting the development appears instead. We have not found any “Developer’s Master Plan” elsewhere in the administrative record. Patterson mentions this document in its appellate briefs, but we do not understand Patterson to be making any separate claim based on it.
If the PowerPoint slides are the “Developer’s Master Plan,” the “approval” of them did not constitute approval of the development. The slides only describe and promote the development; they say nothing about rights, obligations, or entitlements of the parties. Further, only the MOU states that the “Developer’s Master Plan” has been approved. The record contains nothing else indicating that the county carried out any such approval. As we will explain, the expiration of the MOU renders the appeal moot. So far as the record discloses, the expiration of the MOU also terminated any effect the county’s action might have had on this set of PowerPoint slides.
At the meeting, in response to public comments, the chair of the board of supervisors emphasized that the MOU was not a final approval of the development. The chairman said, “[W]e’re not doing anything that we couldn’t back out of.” He went on:
“So as we look at these things and this—everybody seems to think today that this is the end of it all. Okay? It’s a done deal. This is not a done deal. There’s a lot of questions that are going to have to be asked of Kamilos and the group. Okay? And then they’re going to have to answer these questions. Okay? In other words, it doesn’t mean—it doesn’t mean I can’t change my mind. It doesn’t mean any of us up here can’t change our mind. They’re going to have to answer some of the questions that you asked. Okay? They’re going to have to answer those at some point. When we do the environmental report, we do this. And like [another supervisor] said, he said, we don’t know.… But anyway, all these things. Okay. At some point all these questions are going to have to be answered. This is strictly an MOU right now, a Memorandum of Understanding. From this point we go on.”
Kirk Ford, executive director of the redevelopment agency, made similar comments:
“We, as the agency, are not formally agreeing to any specific plan nor any specific provisions of a development agreement. As you said, this is not a done deal at this point in time. The Board simply just defined a draft project description for this project to be used to move forward with various environmental documents. Nothing in the MOU before this agency creates a binding obligation through the agency except to use our best efforts to designate the property as a redevelopment area and to proceed to move forward with preparing a redevelopment plan pursuant to all applicable state and federal laws.”
After the county approved the MOU, Patterson filed its writ petition in Stanislaus County Superior Court, naming the county and the redevelopment agency as respondents and West Park as real party in interest. The Union Pacific Railroad was also named as a real party in interest, and Del Puerto Health Care District and West Stanislaus County Fire Protection District filed petitions in intervention, but these entities are not parties to the appeal. The petition contended that the county was required to carry out environmental review under CEQA and certify an environmental impact report (EIR) or a negative declaration before approving the MOU. The case was transferred to Fresno County Superior Court, where the county filed a motion for judgment, arguing that the vote authorizing the MOU did not constitute approval of a project within the meaning of CEQA, so prior environmental review was not required. In a 16-page order, the court granted the motion and denied the writ. Patterson filed this appeal.
DISCUSSION
If any plan of action is a “project” within the meaning of CEQA, a lead agency to which the plan is presented must prepare and consider an EIR or a negative declaration (explaining why no EIR is necessary) before “granting any approval” of the project, according to the CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15004, subd. (a).) The question whether an agency’s action constitutes “approval” of a “project,” and therefore requires prior environmental review, breaks down into two subquestions, i.e., whether the action was an approval and whether the object of it was a project:
The CEQA Guidelines appear at title 14 of the California Code of Regulations, beginning with section 15000.
“CEQA generally applies to ‘discretionary projects proposed to be carried out or approved by public agencies.…’ Pub. Resources Code, § 21080, subd. (a) (italics added). The CEQA Guidelines and case law have interpreted this quoted language to require a threshold, two-part analysis to determine the applicability of CEQA. The relevant inquiry is whether an agency proposes (1) to ‘approve,’ (2) a ‘project.’ Lexington Hills Association v. State of California (6th Dist. 1988) 200 Cal.App.3d 415, 430-433.…” (Remy et al., Guide to CEQA (11th ed. 2007), p. 70.)
Whether an agency’s decision constitutes an “approval” depends on whether the decision cuts off alternative courses of action that prior environmental review might have supported. “‘Approval’ means the decision by a public agency which commits the agency to a definite course of action in regard to a project.…” (Cal. Code Regs., tit. 14, § 15352, subd. (a).) It is action that “gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review.…” (Cal. Code Regs., tit. 14, § 15004, subd. (b)(2)(B); see also Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138 (Save Tara).) “If, as a practical matter, the agency has foreclosed any meaningful options to going forward with the project, then for purposes of CEQA the agency has ‘approved’ the project.” (Remy, et al., Guide to CEQA, supra, p. 71.) If environmental review were allowed to be delayed until after an agency has taken action foreclosing meaningful options, “EIR’s would likely become nothing more than post hoc rationalizations to support action already taken.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394.)
A “project” is an activity that “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.…” (Pub. Resources Code, § 21065.) Despite the breadth of this definition, however, whether a plan of action is a project ripe for CEQA review depends on the definiteness of the plan. If the plan is still too indefinite to be subject to meaningful environmental review, environmental review is not yet required, for review must occur “late enough to provide meaningful information for environmental assessment.” (Cal. Code Regs., tit. 14, § 15004, subd. (b).) On the other hand, an EIR must not “be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers.” (Save Tara, supra, 45 Cal.4th at p. 130.)
A claim that an agency approved a project before preparing and considering an EIR or negative declaration “‘is predominantly one of improper procedure’” which we review independently. (Save Tara, supra, 45 Cal.4th at p. 131.)
The county contends that the West Park development was not a project because many aspects of it remained unsettled and it therefore was not yet sufficiently definite for meaningful environmental review. “The details of the project were still evolving at the time the MOU was approved, and they continue to evolve as planning for the Proposal proceeds,” the county explains. Patterson argues that major, crucial features of the development were already included in the planning documents—the short-haul rail terminal, the airport, and hundreds of thousands of square feet of industrial and commercial buildings—and that West Park not only could but already had studied various impacts these features would have.
Patterson’s position is persuasive, for a planned development can be a project triggering CEQA environmental review even “prior to planning … of all the specific features of the planned development.” (Friends of the Sierra Railroad v. Tuolumne Park & Recreation Dist. (2007) 147 Cal.App.4th 643, 654 (Sierra Railroad).) That a “more specific and useful [environmental] study” might be possible later does not justify delaying CEQA review if planning has reached a stage at which future environmental impacts of the proposed development are already apparent. (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 797 (plur. opn. of Broussard, J.).) It is difficult to see why environmental review would be premature where, as here, the developer was already in a position to study how many daily vehicle trips the development will generate and similar matters. In fact, the county moved forward with CEQA review a short time after approving the MOU. It issued its public notice of preparation of an EIR on June 18, 2008, less than two months after approving the MOU. The notice states that “[t]he details of the proposed development Phase 1 contain enough specificity for a site-specific, project-level environmental review under CEQA and will allow the consideration of discretionary approvals for implementation of the first phase of development, which includes the general aviation facility, inland port [i.e., the container terminal], and the short-haul rail operations.” If the county’s claim that the project was not ripe for environmental review on April 22, 2008, were true, then substantial new planning must have taken place during those two months, causing the project to cross the threshold. The county has not attempted in its briefs to show that this happened, however, and we see no indication in the record that it did.
Patterson also argues in several places that in Sierra Railroad we held that CEQA review must commence whenever some plan with an identifiable environmental impact is on the table. Patterson misinterprets our holding. We held that CEQA review is not able to begin if a plan with identifiable impacts is not on the table. (Sierra Railroad, supra, 147 Cal.App.4th at p. 657.) This does not mean CEQA review must begin as soon as such a plan is on the table. CEQA’s requirement is that environmental review must be completed before approval of a project, not that it must begin when a project is proposed.
The county argues that its action on the MOU did not constitute approval of the development because the MOU stated that it was nonbinding and that any future approval of the project would be subject to CEQA compliance. Relying on Save Tara, supra, 45 Cal.4th 116, Patterson claims the county’s action constituted an approval despite this language in the MOU.
Save Tara involved a plan to build new structures on city-owned property that contained a historic house. Before carrying out any environmental review, the West Hollywood City Council approved a “‘Conditional Agreement for Conveyance and Development of Property,’” which provided that the city would convey the land to a developer and lend the developer money to build the structures, provided CEQA requirements were first satisfied, among other conditions. (Save Tara, supra, 45 Cal.4th at p. 124.) The Supreme Court held that the agreement constituted an approval of the project because, despite the CEQA-compliance condition, the agreement committed the agency to the project as a practical matter. The agreement stated that its purpose was to cause the redevelopment of the property. It did not make clear that the city would remain free not to go ahead with the project based on findings in the EIR. Surrounding circumstances demonstrated the city’s commitment: It approved another loan to the developer that was not conditional; in support of the developer’s application to a federal agency for funding, the city told the agency it would commit up to $1 million in aid; it announced in its newsletter that it “‘will redevelop the property’”; its officials told residents it was obligated to continue on a path toward redevelopment and that certain options for uses favored by opponents, such as a park or library, had been ruled out; and tenants of the historic house were informed that they would be relocated. (Save Tara, supra, at pp. 123, 140-142.)
The county’s action here has both similarities to and differences from the city’s action in Save Tara. The county’s action is similar to West Hollywood’s in that the MOU’s binding agreement to negotiate in good faith toward building the development at least arguably cut off the county’s ability to decide, based on considerations revealed by the EIR, not to go ahead with the project. If, for instance, the EIR showed that the project would have some immitigable impacts, the county would be faced with a choice between abandoning the project and proceeding with it after adopting a statement of overriding considerations. (See, e.g., Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 717.) Could it choose abandonment consistently with its contractual obligation to negotiate in good faith with West Park? Also, like the city in Save Tara, here the county revealed some level of commitment to the project by means of its other actions. It applied for bond funding and, in doing so, expressed its determination to see the project through, pledging to contribute its own resources in the form of a parcel of land for the rail terminal. The county’s action differs from West Hollywood’s in that the MOU contained not only a CEQA-compliance condition but a general disclaimer of any binding effect other than a requirement to negotiate in good faith. So far, it is difficult to say whether or not the county’s action constituted an approval of the project under the principles of Save Tara.
There is one consideration that sets this case apart from Save Tara, however: Here the challenged agreement has expired and the time for extending it has passed. The county contends this means the appeal is moot.
When, without any fault of the respondent, an event occurs that makes it impossible for the appellate court to grant effectual relief, the court should not proceed to judgment but should dismiss the appeal as moot. (Consolidated Vultee Aircraft Corp. v. United Auto., Aircraft & Agricultural Implement Workers (1946) 27 Cal.2d 859, 863; Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888 (Garreks).) The mootness doctrine has been applied in CEQA cases. In Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378, for instance, the court found part of an appeal moot where a party sought environmental review of the cutting down of trees for a sidewalk project. The trees had already been cut down and replaced with new trees by the time the appeal was considered. Nothing could be done to bring back the old trees and the remedy of planting new ones had already been effectuated, so it would have been fruitless to order preparation of an EIR studying the question. In Garreks, by contrast, we held that a city’s appeal from a writ of mandamus ordering it to prepare an EIR before approving construction of a car wash did not become moot just because the developer had gone ahead and built the car wash without an EIR while the appeal was pending. We affirmed the order to prepare an EIR and stated that the car wash could be modified or even torn down if the environmental considerations supported those measures. (Garreks, supra, 77 Cal.App.4th at p. 888.)
The relief Patterson requests in this case—an order voiding the county’s approval of the MOU—would not have any effect. The MOU expired in October 2008 (before the trial court ruled) and the time during which it could have been extended has also expired. Arguably, the trial court could have found the controversy moot then, although on the other hand, the three potential extension periods had not yet run out at that time.
Patterson points to several other actions the county took on April 22, 2008, which did not have expiration dates and which could conceivably be objects of an order granting relief. Two of the other actions the county took on that date merely authorized individuals to place their signatures on the MOU, so the MOU’s expiration moots the challenge to those actions. The county also “[d]irect[ed] staff to initiate preparation of a Redevelopment Plan for the project area.” We do not see, however, how initiating preparation of a plan could constitute approval of the project. Initiating preparation of a plan does not cut off possible alternatives or mitigation measures.
Patterson asserts that the county also approved “proceeding with negotiating a [Commission] Project Baseline Agreement for the short haul rail” and “proceeding to analyze and environmentally review the Project for future land use entitlements.” The record citation Patterson provides, page 1874 of volume 10 of the administrative record, does not show these approvals. Assuming they took place, an order to rescind them still would not be an appropriate remedy, for a decision in favor of “proceeding with negotiating” or “proceeding to analyze and environmentally review” would not constitute approval of a project.
In its petition, Patterson asked the court for an injunction to “suspend all activities in furtherance of the MOU Approvals, including but not limited to negotiating and approving a DDA between the County, Agency and West Park; negotiating the [Commission] Project Baseline Agreement; approving a redevelopment plan for the Project Area; conveying the redevelopment area property to the Agency; or approving any future land use entitlements in furtherance of the development of the Project.” Patterson does not expressly repeat this request in its appellate briefs. It does say we should “require the County to comply with CEQA before proceeding with any further actions regarding the Project.”
This kind of relief would not be appropriate. To the extent the injunction would be against negotiating or initiating various activities, its force would be similar to that of an order to rescind approvals of proceeding to negotiate or initiate. It would be an order not to do things that would not constitute approvals of the project if they were done. CEQA does not authorize an order of that kind. To the extent the injunction would prevent the county from approving a DDA or otherwise approving the project, Patterson’s request is not moot but unripe. The county does not deny that an EIR is required before it can approve the project, and Patterson does not claim that any approval without CEQA compliance is imminent.
The statement in the draft DDA attached to the MOU that CEQA compliance will occur after adoption of the DDA may, however, be cause for some concern. Nothing in this opinion should be construed as supporting the view that adoption of a DDA without prior CEQA compliance would be lawful. Counsel for the county represent in their brief that “[t]he EIR currently being prepared … will directly address the concerns that the City has expressed in this case, before the terms of the DDA are finalized and any discretionary entitlements are granted.…” (Italics added.) The county is represented by a well-respected environmental law firm, which we presume would not jeopardize its reputation by making other than truthful representations to this court.
In Save Tara, the Supreme Court found that the case was not moot even though the city had completed an EIR by the time the appeal was decided. “Save Tara can still be awarded the relief it seeks, an order that City set aside its approvals,” the court stated; this would be effective relief because it would void the approval of the project and require reconsideration of the decision, “informed this time by an EIR of the full environmental consequences.” (Save Tara, supra, 45 Cal.4th at pp. 127-128.) The present case is not similar. Here it is the expiration of the alleged approval, not the subsequent preparation of an EIR, that renders the appeal moot. An order “voiding” the already-expired MOU would not cause the county to remake any decision in light of an EIR. The county will have to consider an EIR before it approves the project, but that is so regardless of whether or not a court issues an order.
The Supreme Court’s disposition of Save Tara included another remedy we have considered as part of our mootness analysis. In Save Tara, EIR preparation went ahead and was completed while the appeal was pending. The Supreme Court understood that West Hollywood’s decision to approve the project might have influenced the contents of the EIR. Perhaps the court also realized that, since the EIR was already finished, the West Hollywood City Council could respond to the holding by simply reapproving the project at the earliest opportunity. It held: “To the extent the 2006 EIR’s discussion of project alternatives and mitigation measures was premised on City’s 2004 approvals, that discussion may need revision.” (Save Tara, supra, 45 Cal.4th at p. 143.) Whether revision was necessary “must be decided in the first instance by City and reviewed by the superior court on a substantial evidence standard.” (Ibid.) To enforce this conclusion, the Supreme Court ordered the superior court not just to set aside the agreement but also, “if City decides no subsequent or supplemental EIR is required … to review that decision.…” The court did this even though “Save Tara did not judicially challenge [the] EIR’s legal adequacy.” (Ibid.)
Here, similarly, although the MOU has now expired, the project description it contained could improperly limit the discussion of project alternatives and mitigation measures in the EIR that were undertaken subsequently. To prevent the EIR from becoming a mere justification for decisions already made, we could direct the superior court to direct the county to determine whether the EIR it is preparing has been unduly circumscribed by the MOU’s assumptions and to decide whether any supplemental discussion should be added to it. We could direct the court then to review the county’s decision.
We think a remedy of this kind, however, would not be appropriate in the present case. Although it was aware of the example of Save Tara, Patterson did not request any relief of this type. Further, unlike in Save Tara, the record here does not indicate that the county has certified an EIR yet, so there is not yet a finished document for the county to consider revising or supplementing. In addition, because the MOU contained a general disclaimer of bindings effects—not just a CEQA compliance condition—there is less reason here for thinking the preparation of the EIR has been controlled by a preconceived intention to go forward. Any deficiencies in the EIR can be raised in a new writ petition, should Patterson file one, after the project is approved.
We acknowledge that the record shows that psychological momentum may well have gathered behind the project and that the MOU’s expiration did not diminish it. Courts have recognized the importance of psychological momentum and its potential to undermine the objectives of CEQA if environmental review is delayed. (See, e.g., Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1203.) CEQA does not, however, authorize courts to issue orders based on psychological momentum alone. The question is whether the lead agency has taken actions that foreclose project alternatives or mitigation measures. Here, even if adopting the MOU was an action that foreclosed alternatives while the MOU was in effect, its expiration means there is no action left—no approval in place—for a court order to undo. That, despite the psychological momentum, is why the appeal is moot.
Finally, the continuing public-interest exception to the mootness doctrine is not applicable here. Patterson does not raise this point, but we would reject it even if Patterson had raised it. The exception states that if the case involves a matter of continuing public interest and is likely to recur, a court has discretion to decide it even though it would otherwise be moot. (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716; Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391.) In this case, the situation before us is not likely to be repeated, either between these parties or between other parties. The record contains nothing suggesting these parties will enter into another MOU like the one that expired. There is no reason to think other parties will enter into an agreement having the same combination of binding and nonbinding elements under the same surrounding circumstances.
On September 25, 2009, Patterson filed a request that we take judicial notice of two documents: a meeting agenda and a set of meeting minutes of the Bay Area Air Quality Management District. Patterson never explains, either in its request or in its briefs, how these documents are relevant to any issue in this case. Consequently, the request is denied.
DISPOSITION
The appeal is dismissed. The parties should bear their own costs. The request for judicial notice filed on September 25, 2009, is denied.
I CONCUR: Dawson, J.
I CONCUR IN THE JUDGMENT ONLY.
Kane, J.