Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County Nos. BS082219 and BS097982. James C. Chalfant, Judge.
Burke, Williams & Sorensen, Carl K. Newton, Geralyn L. Skapik and Timothy H. Irons for Defendant and Appellant.
Akin Gump Strauss Hauer & Feld, Carlyle W. Hall Jr., Joyce Wong Kup and Andrew Oelz for Petitioner and Respondent.
WOODS, J.
SUMMARY
These two consolidated appeals arise from the trial court’s rulings granting a motion to enforce a prior writ of mandate and a subsequent petition for writ of mandate pursuant to the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.) We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
Las Lomas Land Company, LLC, proposed the development of 555 acres of land to which it held title or purchase options in unincorporated Los Angeles County (the County), immediately adjacent to the City of Los Angeles (Los Angeles) on the south and the City of Santa Clarita (the City) on the north. In mid-2002, in order to commence the CEQA environmental review process, Las Lomas submitted an environmental assessment to Los Angeles, and Los Angeles published a Notice of Preparation (NOP) of an Environmental Impact Report (EIR) for the Las Lomas Project—a proposed mixed-use development of up to 5,800 dwelling units; 2.3 million square feet of office and research and development space; a 300-room hotel; 225,000 square feet of retail space; 250,000 square feet of community facilities; and 285 acres of open space.
The NOP stated that Las Lomas requested a series of discretionary actions, including: (1) approval by the Local Agency Formation Commission (LAFCO) and Los Angeles of a sphere of influence (SOI) amendment encompassing the 555-acre Las Lomas site; (2) approval by LAFCO and Los Angeles of the annexation of the proposed development site to Los Angeles; and (3) approvals by Los Angeles of an appropriate general plan designation along with a zone change and specific plan approval.
In August, Santa Clarita submitted written comments to Los Angeles as to the scope of the proposed EIR, emphasizing the importance of the site’s environmental resources and their environmental sensitivity. Santa Clarita wanted the Los Angeles EIR to provide a detailed evaluation of the potentially significant impacts the development might have on the site’s specified significant environmental area, wildlife corridor, cultural resources and wetlands and hazards potentially posed by the site’s steep slopes, wildlife hazards and nearby earthquake faults as well as the evaluation of numerous alternatives, including development at much lower densities under Santa Clarita’s own plans and policies. Las Lomas and its consultants worked with Los Angeles to prepare the Las Lomas EIR.
Then, in December, the Santa Clarita City Council adopted Resolution No. 02-175, declaring “any development in the Las Lomas project area will have a significant environmental impact upon the Santa Clarita Valley.” It also approved Resolution No. 02-176, initiating annexation proceedings for Santa Clarita to assume jurisdiction and control over an 825-acre area encompassing the Las Lomas site and, because this annexation was “inconsistent with . . . Santa Clarita’s Sphere of Influence as designated by [LAFCO],” indicating it would also concurrently request that LAFCO amend and expand Santa Clarita’s sphere of influence plan. Santa Clarita’s application to LAFCO sought approval of two “Related Jurisdictional Changes”—“Annexation to . . . Santa Clarita and Sphere of Influence Amendment.” LAFCO rejected Santa Clarita’s initial application, noting its failure to pre-zone the area and to provide CEQA documentation.
Two months later (in February 2003), Santa Clarita further considered efforts to acquire jurisdiction over the Las Lomas site by way of the proposed SOI amendment, annexation and an ordinance to pre-zone 811 acres of the annexation area to residential estate and 14 acres to residential moderate. An initial study prepared in support of its Negative Declaration (ND) indicated that Santa Clarita’s general plan designations and zoning would allow construction of up to 560 residential units on the Las Lomas site. In concluding it was not required to prepare a full EIR, Santa Clarita stated its proposed actions were “not linked to” and “not associated with” any particular development proposal then pending before Santa Clarita, it did “not appear reasonably foreseeable” that Las Lomas would consider developing at the lower densities contemplated by Santa Clarita’s general plan and zoning, no development within the Las Lomas site was “reasonably foreseeable” as a result and, consequently, no level of development had to be considered. Further, Santa Clarita determined, the environmental impacts of any site development would be addressed later in a full EIR upon the formal presentation of a development proposal so no EIR was then necessary to evaluate the potential impact of its proposed SOI amendment, annexation, and pre-zoning.
During Santa Clarita’s administrative proceedings, Las Lomas objected that CEQA required a lead agency to consider not only proposed actions immediately before it but all direct and indirect “reasonably foreseeable” future actions and consequences that might later flow from the immediately proposed action, stated it planned to “promptly and diligently develop the Las Lomas site regardless of what jurisdiction may govern the site” and the densities ultimately approved and maintained that development was “not only [reasonably] foreseeable” but “imminent.” As a result, Las Lomas contended, a full EIR was necessary to evaluate the numerous significant environmental impacts Santa Clarita had already recognized for “any development” of the Las Lomas site.
Based on its Negative Declaration (determining no EIR was required), Santa Clarita approved its proposed SOI amendment, annexation and pre-zoning actions and then filed Notice of Determination of its approval of these actions and certification of its Negative Declaration that same month.
In April, Las Lomas filed its first petition for writ of mandate (Las Lomas I) challenging Santa Clarita’s proposed SOI amendment, annexation and pre-zoning as violative of CEQA absent an EIR. Las Lomas sought orders setting aside these actions and providing Santa Clarita could not proceed further without a full EIR.
After hearing on the matter, the trial court (Hon. Dzintra Janavs) found “[t]he record contains substantial evidence to support a fair argument that [Santa Clarita’s] actions may have significant environmental impacts.” As such, Santa Clarita had violated CEQA by preparing only an ND; CEQA required the preparation of a full EIR. In May 2004, Judge Janavs issued a Final Judgment and Peremptory Writ of Mandate ordering Santa Clarita (1) to set aside its defective actions and (2) in “any subsequent processing” of the defective actions, prepare an EIR in full compliance with CEQA and the court’s statement of decision while (3) retaining jurisdiction until Santa Clarita fully complied with the writ.
Santa Clarita did not appeal. The Santa Clarita City Council rescinded its prior approval of the ND (in June) and rescinded its prezoning ordinance (in July). In August, Santa Clarita filed its return to the writ, asserting it had complied with the first part by setting aside its defective actions in violation of CEQA.
Meanwhile, Santa Clarita adopted its Community Strategic Plan, describing its community priorities and proposed strategies for achieving them. Under this plan, Santa Clarita’s “action plan for growth” would focus on completing a “Project[ ] Already In Process”—“[b]ring[ing] the South Santa Clarita annexation strategy to conclusion” during the next three years.
In December, Santa Clarita’s City Manager submitted to the City Council his annual report on the progress in meeting the past year’s goals, stating Santa Clarita and Los Angeles had been discussing a new strategy for controlling development of the Las Lomas site such that the cities would “divid[e] the property at the watershed line, for Santa Clarita to annex the property on the north side, and the City of Los Angeles to extend its sphere of influence on the south side.” In addition, “[e]nvironmental documents will be initiated for annexation of the property into Santa Clarita with the intent to complete in 2005.”
The next day, a Daily News front-page article reported that Santa Clarita and Los Angeles representatives had “quietly cut a deal” to split jurisdiction of the Las Lomas development site: Santa Clarita would “annex about 75 percent of the [Las Lomas] property north of the Santa Susana Mountains,” while Los Angeles would bring the remaining 25 percent into its SOI boundaries.
In the meantime, LAFCO had undertaken a municipal service review (MSR) to update its SOI plan for Santa Clarita and assess whether Santa Clarita’s municipal boundaries should be expanded anywhere. (See Gov. Code, §§ 56424, 56430 [requiring LAFCO to review each city’s public service capabilities in order to update the city’s SOI boundaries at least once every five years].) Notwithstanding Santa Clarita’s request for reconsideration, LAFCO found several important deficiencies in Santa Clarita’s ability to provide public services and infrastructure for future growth and development. Santa Clarita could adequately serve its current population within its current boundaries but, according to the January 2005 MSR, “[a]nticipated growth in the area could create a significant impact on service demands and response times in the region.” “[A]s further development occurs in the future, a higher level of municipal services and additional or upgraded infrastructure and facilities will be needed in the Santa Clara MSR area, specifically parks, libraries, upgraded policing facilities, water and wastewater systems.” The MSR concluded: “[I]n reviewing and updating the [SOI] of the City of Santa Clarita,” the existing SOI plan boundaries “should not be revised or expanded at this time.”
Three months later, the Santa Clarita City Council began to consider and, two months after that, approved (in June 2005), its restructured “South Santa Clarita Sphere of Influence” proposal, requesting that LAFCO approve an expansion of its SOI boundaries to add about 595 acres, including about 75 percent of the Las Lomas site (the same portion the City Manager had indicated Santa Clarita would pursue for annexation). Santa Clarita again based this action on a ND and not an EIR. In its 2005 initial study for the proposed SOI amendment, Santa Clarita stated the proposed amendment was “not related to any proposed development on the site” and “no development is associated with or proposed as part of [Santa Clarita’s] SOI amendment” because Las Lomas had not made a formal application for entitlements to Los Angeles. Santa Clarita further stated development of the Las Lomas site was not reasonably foreseeable as “no development is being proposed as part of this project.”
“The project is not associated with an existing or planned annexation. It is strictly an amendment to [Santa Clarita’s] SOI.” According to the 2005 initial study, “The project is the SOI amendment and, therefore, only reasonably foreseeable indirect impacts caused by the amendment are evaluated. Because the amendment will not give [Santa Clarita] any jurisdiction over the site, any developments proposed at the site are not subject to [Santa Clarita’s] environmental review.” Further, “[a]nnexation . . . is not anticipated in the foreseeable future.”
During the 2005 administrative proceedings on the proposed SOI amendment, Las Lomas again protested Santa Clarita’s failure to prepare an EIR, contending Santa Clarita was in flagrant violation of the Las Lomas I order and CEQA and was increasing its piecemealing of agency approvals, with its annexation action now being segmented into the proposed SOI amendment and ensuing annexation. Las Lomas further argued the SOI amendment would have important consequences impacting jurisdictional control, planning and build-out of the Las Lomas site with implications for LAFCO, other agencies, the developer and the public.
Santa Clarita approved the proposed SOI amendment request to LAFCO based on its ND and filed its notice of determination asserting CEQA compliance.
In July, Las Lomas filed a new petition for writ of mandate under CEQA (Las Lomas II), challenging Santa Clarita’s June 2005 actions approving the proposed SOI amendment and certifying the ND. Las Lomas sought orders setting aside Santa Clarita’s 2005 action and directing its preparation of a full EIR before proceeding with any further action to gain jurisdiction and control over the Las Lomas site.
In February 2006, Las Lomas filed a motion to enforce the Las Lomas I writ, contending Santa Clarita had violated the writ’s second part by approving the SOI amendment as the first key step in obtaining jurisdiction over the Las Lomas site without first preparing an EIR.
The trial court (Hon. James Chalfant) heard combined argument in Las Lomas I and II and issued separate decisions, granting both Las Lomas’s motion to enforce the writ in Las Lomas I and the Las Lomas II petition for writ of mandate.
The decision in Las Lomas I was 8 single-spaced pages, and the decision in Las Lomas II was 21 single-spaced pages.
Santa Clarita appeals.
DISCUSSION
I. Santa Clarita’s Failure to Present any Argument Addressing the Trial Court’s Las Lomas I Ruling Amounts to Waiver.
For the reasons set forth in its detailed decision, the trial court determined that “the plain language of the court’s Final Judgment was to require Santa Clarita to prepare an EIR in any subsequent processing of the Project, with ‘Project’ defined as the expansion of sphere of influence, pre-zoning, and annexation of the Las Lomas area.” Finding that Santa Clarita “intends to annex this property, the proposed sphere of influence amendment is within the scope of the court’s writ of mandate for ‘any subsequent processing of the Project,’ and Santa Clarita violated said writ by processing its plan to obtain jurisdiction over a portion of the Las Lomas Project site without an EIR.” As Las Lomas argues, however, Santa Clarita failed to brief the issues relating to the trial court’s interpretation of the Las Lomas I writ and determination that Santa Clarita had violated it. Accordingly, any such issues are waived. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345, fn. 6 [“An appellant’s failure to raise an issue in its opening brief waives it on appeal”].)
The trial court also cited this finding as support for its conclusion in Las Lomas II.
II. The Trial Court Did Not Err in Las Lomas II as Substantial Evidence Supports a Fair Argument that Significant Impacts May Occur as a Result of the Sphere of Influence Amendment.
“The foremost principle under CEQA is that the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’” (Laurel Heights Improvement Assn. v. Regents of University of California (Laurel Heights)(1988) 47 Cal.3d 376, 390,citation omitted.) “With narrow exceptions, CEQA requires an EIR [environmental impact report] whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment.” (Laurel Heights, supra, 47 Cal.3d at pp. 390-391, citations omitted; see also Bozung v. Local Agency Formation Com. (Bozung)(1975) 13 Cal.3d 263, 277-279 [addressing broad definition of “project”]; and Pub. Res. Code, § 21080.)
CEQA Guidelines define “significant effect on the environment” as “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Cal. Admin. Code, tit. 14, § 15382 (CEQA Guidelines); Pub. Resources Code, § 21083; Bozung, supra, 13 Cal.3d at p. 275.)
An EIR, rather than a “negative declaration,” is required where substantial evidence supports a “fair argument” that significant impacts “may” occur—even if other substantial evidence supports the opposite conclusion. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1000-1003.) The “‘fair argument’” standard imposes a “‘low threshold’” for requiring the preparation of an EIR. (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754, citation omitted.) Such a standard “reflect[s] a preference for requiring an EIR to be prepared.” (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332.) Under the “fair argument” standard, deference to the agency’s determination is not appropriate, and its decision not to require an EIR may be upheld only if there is no credible evidence to the contrary. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317-1318.)
The EIR is “‘the heart of CEQA.’” (Laurel Heights, supra, 47 Cal.3d at p. 392, citing Guidelines, § 15003, subd. (a), further citation omitted; and see Laurel Heights, supra, 47 Cal.3d at p. 392, citations omitted [“An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return’”].)
The Legislature established a local agency formation commission or LAFCO in each county “to discourage ‘urban sprawl’ and encourage the ‘orderly formation and development’ of local governments in each county.” (City of Agoura Hills v. Local Agency Formation Com. (Agoura Hills) (1988) 198 Cal.App.3d 480, 485, citations omitted.) One of the LAFCO’s important functions is to adopt for each city a “sphere of influence;” another is to approve or disapprove annexation proposals submitted by cities within the county. (Ibid.) By definition, “‘[s]phere of influence’ means a plan for the probable physical boundaries and service area of a local agency, as determined by the commission.” (Gov. Code, § 56076, italics added.) “Obviously, the sphere adopted for a city is important. Annexation . . . cannot be approved until LAFCO has established and duly considered relevant spheres of influence.” (Agoura Hills, supra, 198 Cal.App.3d at p. 491, citation omitted.)
For purposes of CEQA, a “project” is defined as any activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and which is (1) directly undertaken by any public agency, (2) supported, in whole or in part, through contracts, grants, subsidies, loans or other forms of assistance from one or more public agencies, or (3) involves the issuance of a lease, permit, license, certificate or other entitlement for use by one or more public agencies. (Pub. Resources Code, § 21065.) “‘Project’ means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . .” (Guidelines, § 15378, subd. (a).) “The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” (Guidelines, § 15378, subd. (c).) Further, CEQA mandates that “environmental considerations do not become submerged by chopping a large project into many little ones . . . .” (Bozung, supra, 13 Cal.3d at pp. 283-284.)
Although the approval of boundary adjustments that do not allow for or otherwise pave the way for a change in the type or extent of land use have been found not to constitute “projects” requiring preparation of an EIR (Simi Valley Recreation & Park Dist. v. Local Agency Formation Com. (1975) 51 Cal.App.3d 648, 662-666 [detachment of undeveloped land from district territory did not make any change whatever in uses to which land might be put]; Agoura Hills, supra, 198 Cal.App.3d at pp. 483, 493-496 [“small[]” sphere of influence amendment virtually coextensive with existing boundaries with the exception of one additional tract area]), adoption of revised sphere of influence guidelines altering a prior policy requiring new urbanization to occur within city boundaries constituted a “project” subject to CEQA. (City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 539.)
“The distinction set out in Simi Valley is . . . between governmental approval which constitutes an essential step culminating in action which may affect the environment (Bozung) and approval of a reorganization which portends no particular action affecting the environment (Simi Valley).” (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 796-797; and see Remy et al., Guide to CEQA, California Environmental Quality Act (11th ed. 2006) p. 25 [courts “have required EIRs for projects that, viewed by themselves seemed limited, but that functioned as catalysts for foreseeable future development”].)
Santa Clarita’s disavowal notwithstanding, as summarized above, the record contains substantial evidence supporting a “fair argument” that significant impacts “may” occur as a result of Santa Clarita’s sphere of influence amendment. According to the record, as part of its “action plan for growth,” Santa Clarita was continuing its efforts to “bring [its] annexation strategy to conclusion.” Yet, the MSR concluded the sphere of influence should not be amended because of Santa Clarita’s inability to accommodate anticipated future growth. Just as our Supreme Court observed in Bozung, supra, 13 Cal.3d at page 281, “It therefore seems idle to argue that the particular project here involved may not culminate in physical change to the environment.”
Santa Clarita’s reliance in its reply brief and at oral argument on our Supreme Court’s decision in Muzzy Ranch Co. v. Solano County Airport Land Use Com. (Muzzy Ranch) (2007) 41 Cal.4th 372 is misplaced. In Muzzy Ranch, the land use commission adopted a land use compatibility plan that “embrace[d] existing restrictions on residential housing development for a large area near an Air Force base.” (Id. at p. 378, italics added.) There, the commission’s adoption of such a plan “fell within an exemption from CEQA for projects that have no potential to cause a significant effect on the environment.” (Ibid., italics added.)
For the first time on appeal, Santa Clarita argues that no EIR was required because the sphere of influence amendment did not constitute a “commitment” or “approval” by Santa Clarita, but these assertions are not only contradicted by the record but miss the mark, and our Supreme Court has already rejected the same argument. (See Laurel Heights, supra, 47 Cal.3d at pp. 390-391, citations omitted, italics added [“With narrow exceptions, CEQA requires an EIR [environmental impact report] whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment”]; and see Laurel Heights, supra, 47 Cal.3d at p. 394 [“The Regents’ view that their approval of a project is the predicate for an EIR stands this principle on its head”].) Santa Clarita has failed to demonstrate error in the trial court’s rulings.
Las Lomas’s motion for production of additional evidence (Santa Clarita’s subsequent notice of preparation of an EIR) is denied as improper extra-record evidence. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559.)
DISPOSITION
The judgments are affirmed. Las Lomas is entitled to its costs of appeal.
We concur: PERLUSS, P. J., ZELON, J.
Just before oral argument, Santa Clarita filed a motion for judicial notice of four documents relating to recent actions taken by the City of Los Angeles with respect to the Las Lomas project, and Las Lomas opposed this motion. We decline to take judicial notice of these documents as we find them to be irrelevant to the issues before us in this appeal.