Opinion
E042087.
6-6-2008
DEEP CREEK AGRICULTURAL ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent; LEWIS OPERATING CORPORATION et al., Real Parties in Interest and Appellants.
Johnson & Sedlack, Raymond W. Johnson, Abigail A. Broedling and Veera Tyagi for Plaintiff and Appellant. Ronald D. Reitz, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED
Manatt, Phelps & Phillips, Tim Paone, Benjamin G. Shatz and Marc D. Luesebrink for Real Parties in Interest and Appellants.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
Deep Creek Agricultural Association (Deep Creek) contends that the County of San Bernardino failed to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereafter CEQA) in approving a proposed residential development to be built by real parties in interest Lewis Operating Corporation and LHC Alligator, LLC (hereafter collectively Lewis). The proposed 249-acre development includes 202 residences built on lots ranging in size from three-quarters of an acre to one acre. It is to be built in an unincorporated area within the sphere of influence of the town of Apple Valley, in an area currently zoned for agricultural use with lot sizes of two and a half acres and 10 acres.
All further statutory citations refer to the Public Resources Code. Citations to "Guidelines" refer to California Code of Regulations, title 14, section 15000 et seq., which are the guidelines for the application of CEQA. (Cal. Code Regs., tit 14, §§ 15000, 15001.) The Guidelines are accorded "great weight" in interpreting CEQA. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380, fn. 2.)
The County of San Bernardino (the county) has filed a joinder in Lewiss briefing in lieu of filing a respondents brief. References to "Lewis" thus refer to the county as well.
Deep Creek is an association of residents who enjoy the rural nature of the area as it currently exists and who object that the Lewis project would irretrievably alter the character of the area. Residents submitted comments on the proposed project, pointing out a number of potentially adverse environmental impacts the area would sustain if the project were built. (The details of the residents objections to the project are discussed below.)
The county planning commission concluded that any potentially adverse environmental impact could be mitigated by the means set forth in the initial study. It recommended adoption of a mitigated negative declaration. After public comment, the countys board of supervisors adopted the mitigated negative declaration. Accordingly, no environmental impact report (EIR) was prepared.
Deep Creek filed a petition for writ of mandate in the superior court, arguing on a variety of grounds that an EIR should be required. The court granted the petition with respect to one issue, the need for an EIR on the environmental impact of the traffic the proposed development would generate. The court otherwise denied the petition. Deep Creek appealed, and Lewis cross-appealed.
CEQA OVERVIEW AND STANDARDS OF REVIEW
"CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.] In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Citations.] CEQA is to be interpreted `to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. [Citation.]" (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.)
"The `heart of CEQA is the EIR, whose purpose is to inform the public and government officials of the environmental consequences of decisions before they are made. [Citations.]" (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 687-688.) CEQA requires a governmental agency to prepare an EIR whenever it approves a proposed project that "may have a significant effect on the environment." (§ 21100, subd. (a), italics added.) A "`[s]ignificant effect on the environment" means "a substantial, or potentially substantial, adverse change in the environment." (§ 21068; see Guidelines, § 15382.) If conditions imposed upon the project "avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur," and "there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment," however, a mitigated negative declaration may be adopted in lieu of an EIR. (§ 21064.5, italics added; see Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1118-1119.) In order to effectuate its purpose of affording "the fullest possible protection to the environment within the reasonable scope of the statutory language" (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 112), however, CEQA requires the preparation of an EIR "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; see also Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) If there is substantial evidence in the record that the project might have a significant environmental impact, "evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration, because it could be `fairly argued that the project might have a significant environmental impact." (Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002.) The fair argument test imposes a low threshold for requiring the preparation of an EIR and reflects a preference for resolving doubts in favor of environmental review. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 84.)
The fair argument test is the standard of review applied in both the trial court and on appeal where a party has challenged a mitigated negative declaration. (Architectural Heritage Assn. v. County of Monterey, supra, 122 Cal.App.4th at pp. 1109-1110, 1112; San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 390.) The project opponent bears the burden of demonstrating that substantial evidence in the administrative record supports a fair argument that the proposed mitigation measures are inadequate and that the project as revised and/or mitigated may have a significant adverse effect on the environment. (Architectural Heritage Assn. v. County of Monterey, supra, at p. 1112; San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra, at p. 390.) We review the administrative record and determine independently whether there is substantial evidence to support the conclusion that a fair argument can be made. (Friends of "B" Street v. City of Hayward, supra, 106 Cal.App.3d at p. 1002; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1374-1375, 1400.)
The sufficiency of the evidence to support a fair argument is a question of law. (Architectural Heritage Assn. v. County of Monterey, supra, 122 Cal.App.4th at p. 1109.) We do not defer to the agencys findings or conclusions. (Id. at p. 1110.) We also do not review or defer to the trial courts findings or conclusions. (Quail Botanical Gardens Foundation v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602, fn. 3.) We review the agencys actions, not the trial courts decision. (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 185.)
We emphasize this point because both parties argue extensively that the trial court erred in various respects. We will disregard those arguments. This includes Lewiss contention that because Deep Creek failed to request a statement of decision, it waived appellate review of any points not expressly decided by the trial court. Because we are not bound by the trial courts factual findings, a statement of decision would have no effect on our review.
DEEP CREEKS APPEAL
LEGAL ANALYSIS
AESTHETIC AND LAND USE IMPACTS
Deep Creek asserts that there is substantial evidence which supports the conclusion that the project will have substantial environmental effects in terms of land use and aesthetics in several respects:
A. The project will divide an established community
The environmental checklist form provided in Appendix G to the Guidelines asks if the project would "physically divide an established community." (Guidelines, Appendix G, subd. IX(a).) The initial study concluded that there will be no such impact, because "the project site is surrounded with existing rural development that is scattered and not a centralized population." Deep Creek focuses on the initial studys apparent conclusion that the existing development does not constitute a community within the meaning of the Guidelines. It contends that the community response to the project shows that the residents consider themselves to be an established community.
We agree that the area constitutes a community. We also agree with Deep Creek that, contrary to Lewiss position, the observations of residents on a nontechnical topic such as this can constitute substantial evidence. (See Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.) However, we do not see any evidence in the record that the project would divide the community, as that phrase has been interpreted by the courts.
In Cathay Mortuary, Inc. v. San Francisco Planning Com. (1989) 207 Cal.App.3d 275, the court held that similar language in former subdivision (u) of Guidelines Appendix G ("A project will normally have a significant effect on the environment if it will . . . [¶] [d]isrupt or divide the physical arrangement of an established community") was intended to apply to projects, such as highway construction, that would constitute physical barriers dividing a community. (Id. at p. 280.) We adopted that analysis in Gentry v. City of Murrieta, supra, 36 Cal.App.4th 1359. (Id. at p. 1419.) In its opening brief, Deep Creek does not cite to any evidence that the project will create a physical barrier separating one part of the local community from other parts. Rather, it argues that the project will adversely affect the existing character of the community. This may be a relevant consideration under CEQA, but it is not what is meant by "divid[ing] an established community." (Guidelines, Appendix G, subd. IX(a).)
In its reply brief, Deep Creek states that "the development of 202 residences on a 249-acre property that will be surrounded by a perimeter wall may constitute a physical barrier." It does not, however, cite any evidence which supports a fair argument that the project will divide the community in the manner contemplated by the Guidelines, i.e., that it will interfere with access between portions of the existing community. Although we review the record independently, "it remains the appellants burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact." (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1348-1349.) Deep Creek has not met this burden.
B. Conflict With the Existing Land Use Plan
Next, Deep Creek contends that the project will conflict with the existing land use plan, in that it requires amendment of the countys general plan to reduce the minimum lot size from two and a half acres in some areas and 10 acres in other areas to 32,000 square feet. The county amended the general plan to accommodate the project.
The fact that a project requires amendment of the existing general plan does not, in itself, constitute a fair argument that the project may have significant environmental impacts. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1207; § 21083, subd. (b); Guidelines, §§ 15063, subd. (d)(5), 15065, subd. (a).) The need for an EIR is not determined with reference to the existing general plan but solely with reference to the potential impact of the newly-authorized use of the land: Neither conformity with the existing plan nor deviation from it is determinative of the environmental impact the project may have. (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1415-1416.)
The remainder of Deep Creeks argument under this heading is that residents object to placing a higher-density development in their rural, agricultural environment, in part because of the aesthetic effect of the walls surrounding the project, which will apparently be as high as 16 feet in some areas, and in part because the higher-density development is not consistent with the existing use of the land, i.e., with larger lots conducive to a rural lifestyle. Their concern is that this development will irretrievably alter the rural character of the area.
An aesthetic impact which is environmentally significant may require an EIR. (See Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 588-593 and cases discussed therein.) In the abstract, a fair argument can certainly be made that placing a walled community of higher-density housing in a rural area consisting of significantly larger parcels of land has a potential aesthetic impact on the environment within the meaning of CEQA. The cases make it clear, however, that the environmental significance of an aesthetic impact is a complex issue. (See Bowman v. City of Berkeley, supra, at pp. 588-593, and cases discussed therein.) Deep Creek has not provided any meaningful briefing on this point, and we therefore decline to address it. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [appellate court is not required to examine undeveloped claims].)
As to the effect the project may have on the lifestyle of the current residents, "[E]vidence of social . . . impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence" that a project may have a significant environmental effect. (Guidelines, § 15384, subd. (a); see Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at pp. 927-928.) A generalized concern that a project may alter the local lifestyle is therefore not sufficient to meet Deep Creeks burden on appeal. (See Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at p. 1352.)
C. Significant Public Controversy
Next, Deep Creek argues that the controversy surrounding the project "by itself justifies an EIR." Deep Creek cites Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, as authority for that proposition. In Sundstrom, the court relied on a prior version of section 15064, subdivision (h) of the Guidelines, which provided, "`In marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following factors: (1) If there is serious public controversy over the environmental effect of a project, the lead agency shall consider the effect or effects subject to the controversy to be significant and shall prepare an EIR." (Sundstrom v. County of Mendocino, supra, at p. 310.) Former subdivision (h) was not consistent with the statutory language of CEQA as it existed in 1988, when Sundstrom was decided, however. Section 21082.2 provided then, as it does now, that the "existence of public controversy over the environmental effects of a project shall not require preparation of an [EIR] if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment." (§ 21082.2, subd. (b); Stats. 1984, ch. 1514, § 6, p. 5339; see Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 929, fn. 18.) The Guidelines are entitled to "great weight" in interpreting CEQA, but the statutory language governs where there is a conflict. (Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at p. 380, fn. 2.) In any event, section 15064 of the Guidelines has been amended to be consistent with section 21082.2: "The existence of public controversy over the environmental effects of a project will not require preparation of an EIR if there is not substantial evidence before the agency that the project may have a significant effect on the environment." (Guidelines, § 15064, subd. (f)(4).) Thus, Deep Creeks burden to show the existence of substantial evidence that the project will arguably have a significant environmental impact is not satisfied merely by showing a public controversy.
D. Cumulative Land Use Impacts
CEQA requires preparation of an EIR if the project may result in significant cumulative environmental impacts and "the projects incremental effect, though individually limited, is cumulatively considerable." (Guidelines, § 15064, subd. (h)(1).) "Cumulatively considerable" means that "the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." (Guidelines, § 15065, subd. (a)(3).) One factor to be considered is the "growth-inducing impact" of the project, including the ways in which the project could foster economic or population growth, or the construction of additional housing in the surrounding environment. (Guidelines, §§ 15126, subd. (d), 15126.2, subd. (d).)
Sections 15126 and 15126.2 of the Guidelines describe items which must be discussed in an EIR. The same considerations necessarily apply to the determination whether a project may have a significant environmental impact so as to require preparation of an EIR.
Deep Creek contends that there is a fair argument that the project will have cumulative impacts because it will require the extension of a water line from the Jess Ranch development approximately one and a half miles to the north of the project site. It contends that the extension of the water line will facilitate further development of the area. It also contends that the initial study fails to address the projects growth-inducing potential, and that the county therefore failed to discharge its duty under CEQA.
Contrary to Deep Creeks position, the initial study does address the growth-inducing potential of the water line extension. The initial study states that while the extension will facilitate development of the current project, it will also "accommodate existing residential development in the area by providing an alternative [to well water] and [a] secure supply of quality water." It goes on to state that the proposed water line extension "may facilitate construction on currently undeveloped properties located along the waterline alignment." It concludes that such growth would represent a continuation of the current pattern of development. Thus, Deep Creeks contention that the initial study fails to address the growth-inducing potential of the project is without merit. The question is whether there is substantial evidence which supports a fair argument that the projects potential to induce growth is sufficient to constitute a significant environmental impact. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 75.)
Lewis contends that any issue pertaining to the growth-inducing potential of the project was not preserved for appellate review because no one raised it during the administrative proceedings. It cites section 21177, which provides that no action or proceeding contesting the approval of a project on grounds that the project may have a significant impact on the environment (see § 21167, subd. (a)) may be brought unless the alleged grounds for noncompliance with CEQA were presented to the public agency orally or in writing prior to the close of the public comment period or prior to the public hearing on the project. (§ 21177, subd. (a).)
Lewis contends that Deep Creek did not cite any portion of the record in which such an objection was raised. However, in its opening brief, Deep Creek cited a report entitled "Apple Valley Residential Project, San Bernardino County, California," which states that the water line extension "may . . . facilitate growth that had not been anticipated by either the County of San Bernardino or the Town of Apple Valley." The record does not indicate the source of the report. Nevertheless, the report is sufficient to demonstrate that someone raised a concern about the growth-inducing effect of the water line extension during the administrative proceedings. That is all that is required to exhaust administrative remedies and preserve Deep Creeks ability to challenge the project on that basis: A petitioner can assert a CEQA violation as long as someone raised the same issue during the administrative proceedings. If an association such as Deep Creek or any of its individual members raised some objection before the agency, the association has standing to file a writ petition. It may then litigate any issue which was raised during the administrative proceedings, regardless of by whom it was raised, i.e., by Deep Creek, one of its members, or someone else. (§ 21177, subds. (a), (b), (c); see State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 792.)
In any event, Deep Creek has not met its burden to demonstrate the existence of substantial evidence supporting a fair argument that the water line extension creates the potential for additional growth sufficient to constitute a significant environmental impact. (Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at pp. 1348-1349.) The potential of a project to lead to further growth is in itself deemed to be environmentally neutral: The potential to induce growth "must not be assumed [to be] necessarily beneficial, detrimental, or of little significance to the environment." (Guidelines, § 15126.2, subd. (d).) Deep Creek cites no evidence that the water line extension would support growth sufficient to constitute a significant impact on the environment. The report it relies on contains no such evidence. Rather, it merely states a concern. This is not substantial evidence. For purposes of CEQA, substantial evidence is "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." (Guidelines, § 15384, subd. (a).) Substantial evidence includes "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (§ 21082.2, subd. (c).) It does not include "[a]rgument, speculation, unsubstantiated opinion or narrative . . . ." (Ibid.)
AIR QUALITY ISSUES
Deep Creek contends that the record contains substantial evidence which supports a fair argument that the project may have significant air quality impacts during construction and operation, and significant cumulative air quality impacts.
A. Construction Impacts
The initial study states that during the construction of the project, levels of both nitrogen oxide (NOx) and particulate matter (PM10, also called fugitive dust) would exceed permissible levels without mitigation. Deep Creek contends that the proposed mitigation measures are inadequate.
Lewis contends that issues pertaining to air quality impacts during the construction phase were not raised during the administrative proceedings and that review is therefore barred by section 21177. Deep Creek does not provide citation to any portion of the record which shows that these concerns were raised during the administrative proceedings. "`Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action. [Citation.]" (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at pp. 791-792.) Section 21177 provides that an objection on the ground sought to be raised for judicial review must be made during the public comment period or prior to the close of public hearing on the project. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199-1200.) An appellant is responsible for providing an adequate record demonstrating error, and must provide specific page citations to the record to support its arguments. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Duarte v. Chino Community Hosp. (1999) 72 Cal.App.4th 849, 856.) If a respondent asserts that a particular ground for objection was not raised during the administrative proceedings, the burden therefore shifts to the appellant to show, by citation to the record, that the ground was timely raised during the administrative proceedings. Because Deep Creek has not provided any citation to the record to show that anyone raised an objection to the project based on air quality impacts during construction, review is barred.
We respectfully disagree with the opinion in Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, which holds that an appellate court has discretion to decide a CEQA appeal based on an objection which was not raised below, if it involves a matter of public interest. (Id. at pp. 712-713.) CEQA actions always involve matters of public interest, by definition. (See Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 112 [discussing purpose of CEQA].) In enacting CEQA, including section 21177, the Legislature expressly required exhaustion of administrative remedies. Thus, while we agree with Woodward Homeowners Assn., Inc. v. City of Fresno, supra, that compliance with section 21177 may be excused under some circumstances—none of which applies to this issue—we do not agree that compliance may be excused on the ground that the issue involves a matter of public interest.
B. Operational Impacts
Deep Creek contends that the project will have an operational impact because much vehicular traffic in the area travels over unpaved roads, which the initial study acknowledges to be a source of fugitive dust. It contends that the county did not adequately study the effect of traffic travelling on unpaved roads because it assumed that travel would be on the single paved road serving the project. Lewis responds that Deep Creek failed to point to any evidence that the studys assumptions concerning traffic are incorrect. Deep Creek replies that public comment referred to "actual road conditions" in the area. The sole example it quotes mentions that there is only a single paved road providing access to and from the project. The focus of the comment, however, is not the question of dust but rather the additional burden which the project would place on the single paved road and the fact that the roads in the area are subject to flooding during long periods of rain. We are not persuaded that this comment, unrelated as it is to the question of fugitive dust, is sufficient to exhaust administrative remedies as to that issue.
C. Cumulative Impacts
The air quality analysis on which the county relied concludes that the project would not cause cumulative air quality impacts above permissible levels. Deep Creek contends that this is incorrect, but does not cite any evidence to the contrary. It has therefore not met its burden on appeal.
NOISE ISSUES
A. Construction Noise
Deep Creek contends that the initial study is flawed because it fails to address the impact of construction noise on residents of the project itself. It points out that the project will be completed in phases, and that as people move into the earlier phases, they will be subjected to high levels of noises as the remaining phases are built. As Lewis points out, however, this issue was not raised during administrative proceedings. Review is therefore barred. (§ 21177, subd. (a).) We note, however, that the mitigated negative declaration does require noise mitigation during all construction phases. Deep Creek does not cite any evidence in the record which supports a fair argument that these mitigation measures would not be adequate.
B. Traffic Noise Impacts on Surrounding Properties
Deep Creek contends that the initial study failed to evaluate the noise impact on existing residences across Deep Creek Road from the project. It contends that because the mitigation measures provided for in the study apply only to the newly built residences, the existing residences across the road will be subjected to noise levels above the threshold of significance.
The initial study, based on a noise study prepared for the project, does conclude that properties within the project which are on Deep Creek Road within 141 feet of the roadway center line would be exposed to traffic noise levels which would require mitigation in order to bring those residences within the countys noise standards. And, as Deep Creek states, the study does not refer to any mitigation which could be done to reduce the noise levels which would be experienced in existing residences across Deep Creek Road from the project. However, Deep Creek does not cite any evidence that there are any existing residences across Deep Creek Road from the project which are close enough to the road center line to be subjected to excessive traffic noise. Deep Creek has thus failed to meet its burden of demonstrating either that the initial study is inadequate in that respect (see Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1182), or that the evidence supports a fair argument that an EIR is necessary with respect to this issue.
C. Cumulative Noise Impacts
Deep Creek contends that the initial study is inadequate because it fails to consider the cumulative noise impact of the project in light of current and probable future development. In fact, the noise analysis relied upon by the initial study examines the projected traffic noise with and without the project, both in 2005 and in 2025. The latter presumably assumes additional development. The noise analysis also concludes that the noise level from air conditioning units on the project would not require mitigation because of the size of the lots and the distance from other residences. Deep Creek cites no evidence to the contrary, and it cites no evidence which supports a fair argument that the project might have other noise effects which require an EIR.
WATER ISSUES
A. Water Quality
Deep Creek contends that the county failed in its duties under CEQA because, although it identified the need to do a percolation study in order to assess the risk to local wells from the use of 202 septic tanks on the 249-acre project, it issued the mitigated negative declaration without having done such a study. Deep Creek contends that the county could not properly rely on a sewage disposal investigation performed for a different property over a mile away, nor on a general statement from the Regional Water Quality Control Board that it "believed" that the project would not have a significant impact on water quality, based solely on the density of the project. It cites a letter from a local resident which asserts that soil conditions in the immediate area, coupled with the fact that most local residents use wells as their water source, demanded careful study to ascertain that the proposed septic system would not contaminate ground water. Lewis responds that a letter from an individual with no expertise in geology cannot constitute substantial evidence that the project might have a significant impact on the water supply.
Lewis is correct that as to technical matters, lay opinion does not constitute substantial evidence but is rather mere speculation. (Guidelines, § 15384, subd. (a); cf. Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 928 [observations of local residents may constitute substantial evidence as to nontechnical matters].) Aside from the letter from the resident, Deep Creek does not cite any evidence in the record which supports a fair argument that the project as mitigated will have a significant impact on water quality as a result of the use of septic systems.
There is, however, substantial evidence that the projects septic systems will not have a significant impact. The initial study states that the density of the project complies with the standards set by the Regional Water Quality Control Board with respect to the use of septic systems—a maximum of two houses per acre. A letter from the Regional Water Quality Control Board adds the caveat that "there should be no significant impacts to water quality from [the project] if all siting criteria are met." (Italics added.) The initial study states that the countys environmental health services department requires percolation tests to determine compliance with siting criteria for the use of individual septic tank disposal systems. The initial study concludes by saying that "[a]dherence to applicable requirements pertaining to the design, siting, construction, and maintenance of septic systems will reduce potential impacts related to this issue to a less than significant level." The conditions of approval for the project provide that if a septic system is to be used, a soil percolation report must be submitted to the countys environmental health services department for approval prior to the recordation of the tentative tract map. Taken all together, this constitutes substantial evidence that a satisfactory percolation test will be sufficient to reduce potential impacts on water quality to a level below significance, and that in the absence of a satisfactory result of the percolation test, the project will not be built. Deep Creek does not cite any evidence which suggests otherwise, and has therefore failed to meet its burden on appeal. (Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at pp. 1348-1349.)
B. Flooding/Drainage
Deep Creek contends that the initial study fails to provide adequate mitigation for drainage and flooding. However, the conditions of approval adopted by the county along with the mitigated negative declaration include specific and detailed requirements Lewis must meet to provide for adequate drainage and to eliminate road flooding, and Lewiss compliance is subject to final approval by the department of public works, prior to the recordation of the tentative tract map and of the final map. In the absence of substantial evidence that the conditions imposed are not adequate to mitigate any potential environmental impacts, this is sufficient. (See Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1393-1396.)
BIOLOGICAL RESOURCES
A. Impacts to Identified Species
The initial study states that 30 special interest plant and animal species may occur in the vicinity of the project. Nine of these species are identified as threatened or endangered by the United States Fish and Wildlife Service and/or the California Department of Fish and Game, or have been proposed for listing or have petitions for listing pending. Nevertheless, no focused surveys were done to determine the presence or absence of any species except the desert tortoise. The biological study commissioned by Lewis and relied upon by the county concludes that of the nine endangered or threatened species, or potentially endangered or threatened species, six are considered to be absent "due to lack of potential habitat." The initial study concludes that "none" of the "remaining 21 special interest species" has more than a low probability of occurring on the project site. The initial study notes that a focused survey to determine the presence of the western burrowing owl is required, and it mandates such a survey before grading or any ground disturbance takes place. If any members of the species are found, the initial study provides for specific and detailed mitigation measures. The initial study also requires focused surveys to determine the presence of Mojave ground squirrels and desert tortoises before the issuance of grading permits, and provides specific and detailed mitigation measures which must be undertaken if any members of those species are found. In the alternative, it provides that Lewis may assume that members of those species are present. If Lewis applies that assumption, the initial study provides for specific mitigation measures which Lewis must undertake.
Deep Creek contends that the countys failure to analyze the presence of and any potential impacts on the remaining species is an abuse of discretion and that the record supports a fair argument that the project might have a significant impact on the identified species. It also contends that the mitigation measures provided for the desert tortoise, the western burrowing owl and the Mojave ground squirrel in the mitigated negative declaration are inadequate.
As to the latter issue, we disagree. The conditions of approval mandate focused surveys for the presence of those three species before any ground disturbance. If any members of those species are located, Lewis is required to take measures to mitigate the projects impact on that species. Because the mitigation measures are specific and detailed and are not left to Lewiss discretion, this does not amount to impermissible "deferred mitigation," contrary to Deep Creeks argument. (See Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275-1276.) Deep Creek does not provide any evidence that the mitigation measures required in the mitigated negative declaration are otherwise inadequate.
We do agree, however, that as to the other listed species which are identified as possibly being present on or near the project site, the initial study is inadequate to support the conclusion that the project will have no significant impact. A lead agency is required to perform an initial study which is sufficient to determine whether a project might have a significant effect on the environment. (Guidelines, § 15063, subd. (a).) The initial study is the preliminary environmental analysis. Its purposes include providing the lead agency with information to use as the basis for deciding whether an EIR is required or to determine whether mitigation measures can render the projects effects environmentally insignificant. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1180; Guidelines, § 15063, subd. (c)(1), (2), (5).) An initial study which omits material necessary to informed decisionmaking subverts the purposes of CEQA and is an abuse of discretion. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, at p. 1202.)
Here, the initial studys conclusion that the project will have no significant effect on biological resources, apart from the three species as to which it concluded mitigation is or may be necessary, is based solely on general information that there is a low probability that members of the identified plant and animal species will be found on or near the project site. However, the record includes a letter from the California Department of Fish and Game, dated August 8, 2005. The writer states that she reviewed the mitigated negative declaration and initial study. She notes that the biological survey was conducted in 2003, and that the initial study discusses only three of the 30 species of rare and endangered plants and animals identified as potentially present in the vicinity of the project site. She states that the Department of Fish and Game requires an updated survey for all of the special status species. The Department of Fish and Game is the trustee agency having jurisdiction over wildlife and rare and endangered plants. (Guidelines, § 15386, subd. (a).) The fact that the trustee agency concluded that the survey the county relied upon in the initial study was inadequate and required updating is substantial evidence that the initial study is inadequate to discharge the countys duty under CEQA to engage in fully informed decisionmaking. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1202.)
Deep Creek also contends that the initial study is inadequate because it fails to address the possible effect on the movements of animal species within and around the project site. This concern was raised during the administrative proceedings. The biological report concluded that the project "will not substantially affect established wildlife corridors or impede the movement of wildlife in the area." It does not, however, provide any basis for that conclusion. The initial study also concludes that the project will have a less than significant impact on wildlife movement. It also fails to state any factual basis for that conclusion. This, too, is inadequate to discharge the countys duty to obtain a factual basis to support its conclusions as to the environmental effect of the project and to engage in fully informed decisionmaking. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at pp. 1180, 1202.) We will remand the matter to require the county to conduct an initial study which does discharge its duty with respect to these concerns. Once the informational requirements of a complete initial study have been met, the county may again determine whether a negative declaration, a mitigated negative declaration or an EIR is appropriate with respect to the biological resources which may be affected by the project. (Ibid.) In the alternative, the county may elect to proceed with an EIR as to impacts on biological resources.
AGRICULTURAL IMPACTS
Finally, Deep Creek contends that despite the countys conclusion that the project will have less than significant impacts to agricultural resources, the record supports a fair argument that the project will have a significant impact in that respect.
The initial study states that the California Department of Conservation has designated approximately 100 acres of the project site as Farmland of Statewide Importance and approximately 143 acres as Unique Farmland. The initial study applies the Land Evaluation and Site Assessment (LESA) model developed by the Department of Conservation (see § 21095) and concludes that the conversion of this farmland to residential use will have a less than significant environmental impact. Deep Creek does not cite any evidence in the record which supports a fair argument that the LESA analysis is incorrect. It has therefore not met its burden on appeal. (Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at pp. 1348-1349.)
LEWISS CROSS-APPEAL
Lewis appeals from the judgment partially granting Deep Creeks petition for writ of mandate and ordering preparation of an EIR to determine the environmental impact of the traffic which will be generated by the project.
Lewis contends that we must reverse the order for preparation of an EIR because the administrative record contains substantial evidence which supports the countys finding that the project as mitigated would not create a significant environmental impact because of the increased traffic it would generate, and that the countys traffic study adequately addressed traffic concerns. However, as we have discussed previously, the fair argument standard applies to the decision to issue a mitigated negative declaration in lieu of an EIR. (Architectural Heritage Assn. v. County of Monterey, supra, 122 Cal.App.4th at pp. 1109-1110.) We will review Lewiss contentions accordingly.
Some of Lewiss argument is directed toward purported errors by the trial court. As discussed elsewhere, our task is to review the administrative proceedings. (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1375-1376.) We will therefore disregard any arguments pertaining to the trial courts ruling or its reasoning.
The initial study acknowledges that the project "will contribute to significant cumulative traffic impacts" at the intersection of Main Street and Rock Springs Road and at the intersection of Deep Creek Road and Bear Valley Road. As mitigation, the conditions of approval require Lewis to pay $23,326, representing the projects proportional share of the cost to install traffic signals and turn lanes at those two intersections. According to the traffic study, the total cost of these improvements is $609,480.
As the parties agree, fee-based infrastructure programs have been found to be adequate mitigation measures under CEQA. (See Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 140; Guidelines, § 15130, subd. (a)(3).) However, in order to meet CEQAs requirements, a fee-based infrastructure mitigation measure must be part of a reasonable plan of mitigation that the relevant agency commits itself to implementing. The mitigation measures must be feasible, and they must actually be implemented. (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1187, 1188.) A proportional share mitigation measure, such as that imposed in this case, rests on the premise that the environmental impact will result from the cumulative impact of several projects, so that it is reasonable to require each of the projects to pay its proportional share of the cost of mitigating that impact. (Id. at p. 1187.) Here, although the county concluded that this projects proportional share of the cost of mitigating traffic impacts is approximately $ 23,000, there is no reference in the record to any other projects which will contribute to the cumulative traffic impact. Thus, there are no other projects which could be the source of the funds which are needed to meet the $600,000 cost of the improvements. Nor does the record contain any evidence as to any other source of those funds. In the absence of any evidence that funds for full mitigation are available, the requirement that Lewis contribute a small portion of the necessary funds is not sufficient to prove either that mitigation is feasible or that it will actually be carried out.
Lewis discusses at length the fact that the county has a congestion management plan (CMP), but it cites no evidence that the county has any source for the balance of the necessary funds or that it has actually made any commitment to funding the mitigation measures the traffic study deems necessary to mitigate the projects traffic impact. In the absence of such evidence, the fee-based mitigation measure imposed on Lewis is inadequate. The record therefore supports a fair argument that even with the mitigation measures, the project will have a significant environmental impact.
Lewis contends that Deep Creek has forfeited any contention that the traffic plan does not address this issue because it did not raise it during the administrative proceedings. Section 21177, on which Lewis relies, provides that "[n]o action or proceeding may be brought [alleging a CEQA violation] unless the alleged grounds for noncompliance . . . were presented to the public agency." (§ 21177, subd. (a).) Here, Deep Creek did not bring an action on the ground that no CMP existed. Rather, Lewis defended against Deep Creeks allegations as to traffic impacts by asserting that the fee-based proportional mitigation measure suffices to mitigate the projects traffic impacts, in part because a CMP exists. Because Deep Creek is not attempting to maintain an action based on the existence or nonexistence of a CMP, section 21177 does not apply.
The initial study also acknowledges that without mitigation, the projects traffic may "[s]ubstantially increase [road] hazards due to a design feature," and may result in inadequate emergency access. The initial study does not elaborate on these concerns, and there are no mitigation measures which address them. It also fails to address other traffic concerns expressed by area residents. One resident pointed out that Deep Creek Road, the only paved road providing access to the project, is not an engineered road, and that it is subject to washouts and flooding. Rock Springs Road to the south of the project, which intersects Deep Creek Road, is also subject to prolonged washouts. The same resident also pointed out that the intersection of Deep Creek Road and Tussing Ranch Road to the north of the project is a "road design nightmare" because of limited visibility in several directions. The conditions of approval do not require any measure to mitigate traffic concerns at the intersection of Deep Creek Road and Tussing Ranch Road. Other residents expressed similar concerns about the roads. These observations constitute substantial evidence in support of a fair argument that additional traffic generated by the project will exacerbate already difficult traffic conditions.
Because the initial study acknowledges that the traffic produced by the project will have a significant environmental impact but fails to impose sufficient mitigation measures, an EIR is required.
DISPOSITION
The order partially granting the petition for writ of mandate, requiring preparation of an EIR addressing environmental impacts resulting from traffic to be generated by the project, is affirmed. The judgment denying the petition for writ of mandate is reversed. The trial court is directed to issue a peremptory writ of mandate requiring the county to set aside its mitigated negative declaration and to conduct a further initial study addressing the projects impact on biological resources as discussed in this opinion, or, in the alternative, to proceed with an EIR addressing the projects impact on biological resources. Costs on appeal are awarded to Deep Creek.
We concur:
Hollenhorst, Acting P.J.
Miller, J.