Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV236968
Kline, P.J.
INTRODUCTION
East Santa Rosa Neighbors appeals from an order of the Sonoma County Superior Court denying appellant’s petition for a writ of mandate, by which appellant sought to set aside various approvals by the City of Santa Rosa (City), including approval of a secondary public access road connecting the Skyhawk subdivision with a public road, approval of an emergency vehicle access (EVA), and approval of a final subdivision map for phases 9 and 10 of the Skyhawk development. Appellant contends that the approvals violated the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.), the Williamson Act (Gov. Code, § 51200 et seq.), the Subdivision Map Act (Gov. Code § 66410 et seq.), and the Santa Rosa City Code.
East Santa Rosa Neighbors identifies itself as an unincorporated association made up of residents and property owners in the City of Santa Rosa and Sonoma County.
“Despite the absence of a separate formal judgment, an order denying a petition for a writ of mandate ‘constitutes a final judgment for purposes of an appeal.’ [Citation.]” (Wong v. Ohlone College (2006) 137 Cal.App.4th 1379, 1382, fn. 3.)
All statutory references are to the Government Code, unless otherwise indicated. References to “Guidelines” are to the “Guidelines for the Implementation of the [CEQA]” contained in the California Code of Regulations, title 14, section 15000 et seq.
Appellant contends: (1) the City erred in not requiring a subsequent Environmental Impact Report (EIR) under CEQA; (2) City’s required findings under the Williamson Act are not supported by substantial evidence; (3) City’s approval of the final map violated the Subdivision Map Act and the City Code, because the developer (real parties in interest Christopherson Homes, Inc. and Skyhawk Partners) had not complied with the terms and conditions of the tentative map that a second access road be “guaranteed.”
Real parties in interest Christopherson Homes, Inc. and Skyhawk Partners (sometimes jointly referred to as “the developer”), joined by real party in interest Stashak Family Partnership, L.P., dispute the foregoing claims and further argue that appellant lacks standing for its Williamson Act and CEQA claims, the CEQA issue regarding the Williamson Act claim is moot, and the CEQA claim is time-barred. Respondent City has informed us that it does not intend to file a brief in this action. We shall affirm the order denying the writ petition.
Some of the actions described herein as taken by the developer were taken by Norm Alumbaugh, the predecessor in interest of real parties in interest Christopherson Homes, Inc. and Skyhawk Partners. Alumbaugh is not a party to this action.
FACTS AND PROCEDURAL BACKGROUND
In August 1988, the City certified the final EIR for a subdivision later redesigned and renamed Skyhawk. On November 17, 1992, the City Council approved Resolution No. 21090, which real parties characterize as a CEQA addendum to the EIR. The 1992 resolution updated the CEQA analysis in the 1988 EIR, attaching multiple mitigating conditions to Skyhawk, including a mitigation measure (Mitigation Measure D) requiring a “second public street access” to lots 403 through 437 (phases 9 and 10 of the development), as follows:
“A final map for lots 403 through 437 shall not be requested or filed by Developer or approved until a second public street access to these lots, as approved by the City, can be guaranteed to occur prior to, or simultaneously with, development of these lots. The required second public street access to these lots may be provided through public street access from Sunhawk Drive to Yerba Buena Road and/or from Sunhawk Drive to Los Alamos Road or through other alternate means acceptable to the Fire Marshall and City Engineer. Without access, a final map will not substantially conform to any approved tentative map and will be denied pursuant to Government Code Section 66473.”
The condition was added to mitigate potential environmental impacts identified by the Fire Chief concerning egress during a large fire at the site. The 1992 resolution also required that “a tank site shall be secured for the proposed upper level water tank on the [neighboring] Stashak property. . . .”
The Stashak family owned approximately 215 acres of agricultural grazing land adjacent and north of phases 9 and 10. Although the land lies outside City limits, a portion is within the City’s urban growth boundary. The 215 acres is subject to a Williamson Act contract with Sonoma County entered into and on public record since 1967.
In October 1993 and January 1994, the original Skyhawk developer entered into an agreement with the Stashak family for which the Stashaks agreed to grant interests to the City, including fee title to the tank site, permanent and temporary access easements to the site, a temporary construction easement for a water pipeline from the tank to Skyhawk, and a permanent pipeline and maintenance road easement. (“Agreement to Grant Offsite Fee Interests, Permanent Easements and Temporary Easements for Skyhawk Subdivision.”) The temporary access easement and permanent maintenance road easement in the 1994 developer-Stashak agreement created an inverted “V”-shaped road with a tail at the point of the “V”. The road covered by the 15-foot wide temporary access easement (the right side of the inverted “V”) was to be “a minimum of 12 feet wide.” The agreement ensured that the temporary access easement described and mapped therein continued in full force until the Stashak family and the City agreed on a permanent access to replace it. The agreement provided that the Stashaks “will convey to the City a fifteen foot wide exclusive permanent pipeline and road easement” (left side of the “V”) within 15 days from the date the agreement and to “float” within the described area until final development plans are prepared and approved for the Skyhawk subdivision, at which time the precise alignment of the easement will be determined. (In 2005, the inverted “V” was approved as the EVA alignment for Skyhawk.) The agreement was provided to the City’s Engineering and Community Development Departments for review before the tentative map was approved in March 1994, as the agreement is referenced in the “Final Development Advisory Committee Report,” dated December 21, 1993.
The agreement provided with respect to the permanent easement that “[a]fter the pipeline is installed, the road will be improved. That portion of the road which lies between Sunhawk Drive and the urban boundary of the City of Santa Rosa will be improved to a twelve foot width with an earth tone aggregate base over the pipeline. This portion of the road shall blend in to the natural topography and appearance of the Stashak Property. That portion of the road lying between the urban boundary of the City of Santa Rosa and the water tank will be improved to a twelve foot width with an all weather shale on slopes of less than 10% and pavement on slopes greater than 10%.”
On March 8, 1994, the City Council adopted Resolution No. 21698, approving the tentative map for the 10-phase Skyhawk subdivision, including Mitigation Measure D. The City Council found the Skyhawk project within the scope of, and adequately described by, the previous environmental document. The resolution approving the tentative map stated that “[w]ater service and fire flow impacts have been mitigated through a mitigation agreement entered into by the developer providing for required water and fire flow infrastructure.” The resolution relied on and incorporated by reference the 1992 Resolution No. 21090, including specifically that “[t]he project will comply with the mitigation monitoring plan contained [therein]. The City Council also found that “[n]o additional site specific impacts have been identified which were not addressed as significant [e]ffects in the environmental document. The record did not demonstrate any substantial new information that identified impacts which would be more significant than described in the prior environmental document.” (Resolution No. 21698, ¶ 13.) It further found that substantial changes have not occurred that would require important revisions to the previous environmental document (id., ¶ 19), and that information requiring the preparation of a subsequent EIR was not presented (id., ¶ 20). The agreement between the Stashak family and the developer conveying the various temporary and permanent easements to the City was recorded on April 5, 1994.
No action was filed by opponents of the project within the statutory period to challenge these approvals or the City’s CEQA analysis contained therein.
Thereafter, between 1994 and 2004, final maps for Skyhawk phases 1 through 8 were approved and recorded and the property was developed with approximately 478 homes, an elementary school, and a neighborhood park.
In February 2003, the City and the County of Sonoma (County) signed a Memorandum of Understanding (MOU) acknowledging it was appropriate for the City to assume responsibility in the unincorporated area, for issuing permits and inspecting the construction of the maintenance access road, water main, water reservoir and other site improvements to be performed in conjunction with the construction of Skyhawk subdivision units 8, 9 and 10.
In the spring of 2004, the City allowed construction of the paved maintenance road that later became the EVA across the Stashak property, to service the pipeline connecting the earlier-constructed water tank to Skyhawk.
Sometime during 2004, the Stashaks agreed to sell to the developer the easements necessary for the second public road. On February 12, 2005, an agreement between Stashak, the developer, and the City provided that Stashak “hereby conveys” the two roadway easements to the City and that the easements conveyed “are hereby accepted by the City ‘subject to improvement’ ”; that is, that the “City’s acceptance of the Stashak’s conveyance shall become effective automatically and immediately” upon actual construction of the two roadways by the developer, upon the City’s determination that actual construction of the two roadways had been completed by the developer, and “upon securing the consent of any governmental entity which may be required.”
“Roadway 1 [the second public street access] will be developed as a 24 foot public street with curb within a 36 foot easement. . . . [¶] . . . Roadway 2 [the EVA] will be gated at both ends, developed by Skyhawk with a 20 foot improved roadway within a 25 foot easement and only be used for emergency vehicular access.”
On February 28, 2005, the County notified the City of its determination that the proposal for granting of a public access easement for the two proposed roadways, located on property subject to a Williamson Act contract, “appears consistent with the Sonoma County General Plan.” The City Attorney confirmed with the County that the County’s consent was not required before the City could construct and operate these streets.
The tentative map for phases 9 and 10 was to expire on March 8, 2005. However, the developer requested a discretionary one-year extension, which allowed it another 60 days—until May 9, 2005—to file the final map.
On March 3, 2005, the developer submitted a request to the City to extend the 1994 tentative map from March 8, 2005 to March 8, 2006. If the developer failed to file a final map by May 9, 2005, the tentative map extension would go before the Planning Commission and the commission would need to make a finding of General Plan consistency. Due to changes in the City’s General Plan, it was not clear that such a finding could be made unless the developer redesigned the project. If the extension were denied, the developer would be required to file a new tentative map and hillside development permit in accord with the then current General Plan.
In April 2005, the developer requested the City to make findings pursuant to section 51292 of the Williamson Act. The City gave notice that it would consider whether such findings could be made with respect to the second public street access as required by the condition of the approved tentative map and with respect to the EVA.
On April 26, 2005, the final map was submitted to the City Engineer and notice was given to the City Council that the map was being reviewed for final approval.
In May 2005, in connection with the City’s hearing to determine whether findings could be made to allow a public street and EVA to be constructed on the property in accordance with section 51292 of the Williamson Act, appellant argued that the construction of the 2004 water tank roadway violated the Williamson Act because the City had failed to provide notice to the Department of Conservation (DOC) under section 51291. Counsel for real parties in interest acknowledged that there had been an “unfortunate and inadvertent” failure by the City to comply with the notification provisions when the pipeline maintenance road was constructed, but that “the correct procedures are now being followed.” (In the trial court and on this appeal, real parties contend that they were mistaken in their belief that notice was required and that notice to the DOC was not required in the circumstances because the City was unwilling and unable to condemn the property and the section 51292 findings therefore were unnecessary.)
The easements for the second access road and EVA are located on approximately two acres of the 215-acre Stashak property under Williamson Act contract. The second public access road is described in a City staff report prepared in connection with the City Council hearing on the Williamson Act findings as “approximately 900 feet in length and would extend from Sunhawk Drive through a ridgeline, across a creek/ravine area with steep slopes and oak trees, and extend across pasture to the east end of Yerba Buena Drive. The public road easement will be 36 feet in width to allow for two 12 foot travel lanes and a 4-foot pathway on one side. The road will include curb, gutter and streetlights.” The road will connect the current dead end of Yerba Buena Road at the Stashak western property line to Sunhawk Drive. The EVA is located on the site of the existing water supply maintenance road built in 2004. It is described in the staff report as “approximately 2,400 feet in length, 20 feet in width, paved, and gated. The EVA would be located within a 25-foot wide easement. The EVA would widen an existing public utilities access road.”
In correspondence from the DOC regarding the issue, the DOC observed that if the City were acquiring the property for a public improvement, “[s]uch an acquisition not only requires notification pursuant to Government Code section 51291[, subdivision] (b) but making findings required under section 51292 and voiding the contract by eminent domain or in lieu of eminent domain pursuant to section 51295.” On the other hand, if the developer acquired and built the roadways, then transferred them to the City, as DOC understood was the case, “the developer’s acquisition and roadway construction would not involve a public agency acquisition[,] but rather approval from the County as a compatible use on contracted land.” Based upon the description provided, the DOC did not consider the roadways to be “compatible uses” under the Williamson Act. The DOC requested further information, which the City thereafter provided. The City also clarified that the developer would pay Stashak for the easements and Stashak would give the easements directly to the City. In a second letter dated May 2, 2005, the DOC stated it had not been provided sufficient information to determine whether the required section 51292 findings for acquisition by the City could be made. It reiterated that if the City had no eminent domain authority with regard to the property, so that neither eminent domain nor the threat of eminent domain were involved, “the contract would not be voided as to the easements upon acquisition by the City ([§ 51295]). The subject roads would be considered incompatible uses and would not be allowed under the contract.” The DOC warned that “[t]he City should be aware that Williamson Act contracts may be enforced by the County, the Department, or by court action brought by local landowners.”
On May 3, 2005, following a public meeting on the proposed resolution, and after considering a staff report incorporating engineers’ correspondence and other documents, the City Council made findings under the Williamson Act section 51292, that: “1. The location of the public road and EVA is not based primarily on a consideration of the lower cost of acquiring land in an agricultural preserve; and [¶] 2. There is no other land within or outside the preserve on which it is reasonably feasible to locate the public improvements.” Before the hearing, City staff concluded that the Williamson Act findings were exempt from CEQA. Although real parties at the time believed that Williamson Act findings were necessary, they argued in the trial court and argue here that the findings were unnecessary because no eminent domain or purchase in lieu of eminent domain was involved and the land was not removed from the effect of the Williamson Act contract.
On May 6, 2005, the City Engineer approved the final map for phases 9 and 10, having “found it to substantially conform to the tentative map approved March 8, 1994,” the conditions of approval, the Subdivision Map Act, and the City Code. Approval of the final map occurred in tandem with the Stashak family’s dedication to the City of easements over which the second public street access and EVA will be located. The City Engineer accepted the second roadway public access easement and the EVA easement, “subject to improvement for public use” and the conditions set forth in the two roadway easements. The final map expressly prohibits anyone “from applying for residential building permits for Phases 9 and 10 until such time as Roadway 1 [second public street access] and Roadway 2 [EVA] have actually been constructed by Skyhawk and approved by the City.”
On May 16, 2005, appellant filed a timely administrative appeal of the May 6, 2005 approval of the final map. On June 14, 2005, the City Council heard and denied appellant’s appeal.
On June 28, 2005, appellant filed a petition for writ of mandate challenging the City’s approvals of the second public access road and the EVA as done in violation of CEQA and the Williamson Act, and challenging the final map approval as a violation of the Subdivision Map Act and the City Code. Real parties in interest Christopherson Homes, Inc. and Skyhawk Partners and respondent City filed their joint opposition brief on March 29, 2006, joined by real party in interest Stashak Family Limited Partnership, L.P. Following a hearing, the superior court denied the writ of mandate by order filed August 23, 2006. This timely appeal followed.
DISCUSSION
I. Whether the City Erred in Not Requiring a Subsequent EIR
A. Standard of Review
“ ‘An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.’ (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.)” (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 102 (Megaplex).) Consequently, we review the trial court’s decision here de novo. (Ibid.)
B. The property conveyed to the City for the two roadways remains subject to the Williamson Act
Since 1967, the property conveyed to the City for the roadways has been the subject of a Williamson Act contract between Sonoma County and the Stashak family. “The Williamson Act establishes a mechanism for saving agricultural land by allowing counties to create agricultural preserves and then to enter into contracts with landowners within those preserves. (Gov. Code, § 51200 et seq.) A Williamson Act contract obligates the landowner to maintain the land as agricultural for 10 or more years, with resulting tax benefits. (Id., §§ 51240-51244.) Absent contrary action, each year the contract renews for an additional year, so that the use restrictions are always in place for the next nine to 10 years. (Id., § 51244.)” (Friends of East Willits Valley v. County of Mendocino (2002) 101 Cal.App.4th 191, 195 (Friends of East Willits Valley).)
“Three methods exist for terminating a Williamson Act contract. The county or the landowner may give notice of nonrenewal, in which case automatic renewal will cease and the contract will expire at the end of its remaining term. (Gov. Code, §§ 51245, 51246.) Alternatively, the landowner may petition the county for cancellation of the contract, and the county may approve the petition upon finding that cancellation is in the public interest or is consistent with the purposes of the Williamson Act. (Id., §§ 51280-51282.) Finally, the government may institute eminent domain proceedings. A taking nullifies the contract. (Id., § 51295.)” (Friends of East Willits Valley, supra, 101 Cal.App.4th at pp. 195-196.)
None of these three cancellation procedures was used here. As reflected in a letter from the City Attorney to the attorney for real parties, the City and real parties apparently agreed that the City did “not have eminent domain authority with regard to the Stashak property.” Nor did the voluntary conveyance of the easements to the City provide a basis for cancellation of the Williamson Act contract under section 51295.
Section 51295 provides in part: “When any action in eminent domain for the condemnation of the fee title of an entire parcel of land subject to a [Williamson Act] contract is filed, or when that land is acquired in lieu of eminent domain for a public improvement by a public agency or person, or whenever there is any such action or acquisition by the federal government . . ., the contract shall be deemed null and void as to the land actually being condemned, or so acquired as of the date the action is filed, and for the purpose of establishing the value of the land, the contract shall be deemed never to have existed.” (Italics added.) The statute also provides that “[w]hen an action to condemn or acquire less than all of a parcel of land subject to a [Williamson Act] contract is commenced, the contract shall be deemed null and void as to the land actually condemned or acquired . . . .” (Ibid.)
Friends of Willits Valley, supra, 101 Cal.App.4th 191, recognized that the cancellation provisions of section 51295 are “triggered only when specified procedures are in fact used for acquisition.” (Id. at p. 199.) The actions defined in the statute were described by the court as “condemnation actions under the eminent domain power or acquisitions negotiated under threat of institution of a condemnation action.” (Ibid.) The owner’s voluntary transfer of title and the governmental entity’s acceptance “is not the involuntary taking contemplated by the statute and does not automatically terminate the restrictions on the [property] under Government Code section 51295.” (Ibid.)
“The law of eminent domain applies if the public entity’s acquisition of the property is not an open-market transaction but obtained under threat of condemnation. Such a threat is often described as an unequivocal expression of the intent to condemn, and the property conveyance is described as in lieu of condemnation. [Citations.]” (Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 987 [Pub. Resources Code, § 5540 requiring voter or legislative approval for voluntary transfers of open space land inapplicable to involuntary transfer, directly caused by a credible and imminent threat of city’s exercise of its eminent domain power].)
Consequently, as the parties appear to agree, the property voluntarily conveyed to the City for the secondary road easement and the EVA remains subject to the Williamson Act.
C. No standing to challenge Williamson Act findings
Real parties in interest argue that appellant lacks standing to challenge the City’s section 51292 Williamson Act findings. We agree.
Section 51292 provides: “No public agency or person shall locate a public improvement within an agricultural preserve unless the following findings are made: [¶] (a) The location is not based primarily on a consideration of the lower cost of acquiring land in an agricultural preserve. [¶] (b) If the land is agricultural land covered under a contract pursuant to this chapter for any public improvement, that there is no other land within or outside the preserve on which it is reasonably feasible to locate the public improvement.”
Section 51294 limits challenges to the section 51292 findings: “Section 51292 shall be enforceable only by mandamus proceedings by the local governing body administering the agricultural preserve or the Director of Conservation. However, as applied to condemnors whose determination of necessity is not conclusive by statute, evidence as to the compliance of the condemnor with Section 51292 shall be admissible on motion of any of the parties in any action otherwise authorized to be brought by the landowner or in any action against the landowner.” (Italics added.) Appellant is neither the local body administering the preserve nor the Director of Conservation. Nor is the City a “condemnor” in this instance.
The statute allows the landowner or any party in an action against the landowner to introduce “evidence as to the compliance of the condemnor with Section 51292 on motion . . . .” (§ 51294.) This action was against the landowner, among others, and appellant is a party. However, this not an action envisioned by the statute. No motion was made by appellant to produce evidence and, more importantly, the statute limits nonagency enforcement of section 51292 to producing “evidence as to the compliance of the condemnor with Section 51292 . . . .” (§ 51294, italics added.) Here, as we have recognized, there was no condemnation and the City was not a condemnor. Rather, the developer paid for a voluntary conveyance of easements by the landowner to the City. There was no evidence of a threat of condemnation or other coercion by the City. Therefore, under the plain language of section 51294, appellant has no standing to challenge the section 51292 Williamson Act findings made by the City Council.
D. Standing to challenge CEQA compliance
Appellant’s lack of standing to challenge the specific Williamson Act findings made by the City under section 51292 as being unsupported by substantial evidence does not render appellant without standing to challenge the City’s alleged violation of CEQA in failing to require a subsequent EIR.
Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d. 151, 158-159, held that a geographical nexus is enough to obtain standing in a case concerning an alleged violation of CEQA. Appellants have sufficient geographical nexus with the subject property to provide standing to raise a CEQA challenge.
“To have standing to apply for a writ of mandate a private citizen must be a ‘party beneficially interested.’ (Code Civ. Proc., § 1086.) Generally, a beneficial interest is established only when a plaintiff ‘ “. . . has some private or particular interest to be subserved, or some particular right to be preserved or protected, independent of that which he holds with the public at large.” ’ [Citation.] However, where a public right is involved, and the object of the writ of mandate is to procure enforcement of a public duty, the plaintiff is not required to have any legal or special interest in the result; it is sufficient that as a citizen he is interested in having the public duty enforced. [Citation.] Accordingly, in a writ of mandate against a municipal entity based on alleged violations of CEQA, a property owner, taxpayer, or elector who establishes a geographical nexus with the site of the challenged project has standing. [Citations.] Moreover, the geographical nexus can be attenuated, for instance beyond the city limits, because ‘effects of environmental abuse are not contained by political lines.’ (Bozung v. Local Agency Formation Com. [(1975)] 13 Cal.3d 263, 272.)” (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, supra, 172 Cal.App.3d. at pp. 158-159.)
E. Whether section 51292 findings trigger CEQA
Real parties next claim that Williamson Act findings under section 51292 were unnecessary as these findings only apply when the property is acquired by the exercise of eminent domain or in lieu of eminent domain proceedings and that this is not the case here. (The City expressly did not join in this portion of real parties’ argument in the trial court.)
We take judicial notice of the City Attorney’s letter to the trial court, stating that City had not changed its position on the need for findings and that the arguments in real parties’ and City’s joint trial brief on the need for Williamson Act findings should be attributed only to real parties. (Evid. Code, §§ 452, subds. (d) & (h), 453, 459.)
Appellant does not argue that the statute applies to voluntary dedications, such as those here. Nor does appellant attempt to counter real parties’ interpretation of the legislative history of section 51292. Rather, appellant’s sole contention on appeal as to the need for the section 51292 findings is that because the developers argued the findings must be made in the administrative proceedings below, they cannot change course in the trial court and on appeal to argue that the findings were unnecessary. (See Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 525 [redevelopment agency that applied rule of necessity to allow a board member to vote despite a conflict of interest was not allowed to deny the existence of such a conflict on appeal].) “California public policy ‘will not permit a litigant “to blow hot and cold” ’ by taking the benefits of a doctrine ‘when it suits his purpose’ and then repudiating the same facts ‘when it is no longer profitable or to his advantage to do so.’ [Citations.]” (Ibid.) On the other hand, if the Williamson Act findings were not required, it is difficult to see how the making of them could trigger a CEQA obligation. In any event, we find it unnecessary to determine whether the section 51292 Williamson Act findings were required in the circumstances presented. Assuming they were required and that the section 51292 determination was discretionary, rather than ministerial, we nevertheless would conclude that substantial evidence supports the City Council’s failure to require a subsequent EIR.
Were we to address the question, we point out that the plain language of section 51292 does not limit its reach to eminent domain or acquisitions in lieu of eminent domain. The statute unequivocally provides that “[n]o public agency or person shall locate a public improvement within an agricultural preserve unless” it makes the required findings. (§ 51292.) Nevertheless, real parties contend that in the context of Government Code article 6, in which it appears, section 51292 necessarily applies only where the City exercises its power of eminent domain or acquires the property in lieu of eminent domain. The title of article 6 is “Eminent Domain or Other Acquisition” (36 West’s Ann. Gov. Code (2008 Cum. Pocket Part) p. 191, italics added), indicating a scope greater than eminent domain. Section 51290 sets forth the state policy “to avoid, whenever practicable, the location of any . . . public improvements . . . and the acquisition of land therefore, in agricultural preserves”; to locate the public improvement upon non-contracted land whenever practicable; and to require the entity proposing to locate such an improvement “shall, in considering the relative costs of parcels of land and the development of improvements, give consideration to the value to the public . . . of land, and particularly prime agricultural land, within an agricultural preserve.” (§ 51290, subds. (a)(b) & (c).) This express statement of public policy indicates the concerns it reflects are not limited to property acquired by eminent domain or in lieu thereof, but apply more broadly to the location of public improvements on agricultural preserve land, however that land is acquired.
Real parties claim that the section 51292 determination was “ministerial” here, rather than “discretionary” on the ground that the findings were “a sub-part of the City’s ministerial approval of the final maps and so exempt from CEQA.” The City staff appears to have determined the findings were “exempt” from CEQA. The City Attorney advised the DOC on May 3, 2005, that a determination was made that the Williamson Act findings were ministerial and therefore exempt. “Ministerial projects are exempt from the requirements of CEQA. The determination of what is ‘ministerial’ can most appropriately be made by the particular public agency involved based upon its analysis of its own laws, and each public agency should make such determination either as part of its implementing regulations or on a case-by-case basis.” (Guidelines, § 15268, subd. (a).) “Ministerial’ describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out. Common examples of ministerial permits include automobile registrations, dog licenses, and marriage licenses. . . .” (Guidelines, § 15369.)
F. Subsequent EIR (Pub. Resources Code, § 21166)
Once an EIR or negative declaration has been completed, Public Resources Code section 21166 prohibits the lead agency from requiring preparation of a subsequent or supplemental EIR, unless one of three triggering conditions exists. “When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” (Pub. Resources Code, § 21166; see Guidelines, § 15162, subd. (a) [statutory criteria apply when “an EIR has been certified or a negative declaration adopted for a project”].)
“Under CEQA, ‘project’ ‘ refers to the underlying activity which may be subject to approval by one or more governmental agencies; it does not refer to each of the several approvals sequentially issued by different agencies.’ [Citations.] ‘This definition ensures that the action reviewed under CEQA is not the approval itself but the development or other activities that will result from the approval.’ [Citation.] . . . [¶] . . . [U]nder the Guidelines an ‘approval’ is ‘the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.’ (Guidelines, § 15352, subd. (a).)” (Megaplex, supra, 149 Cal.App.4th at p. 106.)
“[C]hallenges under CEQA to later approvals or to changes in the project are ‘ “limited to the legality of the agency’s decision about whether to require a subsequent or supplemental EIR, or subsequent negative declaration, and the underlying EIR or negative declaration may not be attacked.’ ” [Citations.]” (Megaplex, supra, 149 Cal.App.4th at p. 110.) “[T]his limitation applies even if the original [EIR] was invalid or in some way defective.” (Ibid., italics added.) As explained in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, “[Public Resources Code section 21166] represents a shift in the applicable policy considerations. The low threshold for requiring the preparation of an EIR in the first instance is no longer applicable; instead, agencies are prohibited from requiring further environmental review unless the stated conditions are met. [Citation.] [¶] Thus, Public Resources Code section 21166 provides a balance against the burdens created by the environmental review process and accords a reasonable measure of finality and certainty to the results achieved. [Citation.] At this point, the interests of finality are favored over the policy of favoring public comment, and the rule applies even if the initial review is discovered to have been inaccurate and misleading in the description of a significant effect or the severity of its consequences. [Citation.]” (Id. at pp. 1017-1018.)
On appeal, we will uphold the City’s determination as to whether conditions requiring further environmental review are met if the record as a whole contains substantial evidence supporting the City’s decision. (Guidelines, § 15162, subd. (a) [agency’s determination to prepare subsequent EIR to be made “on the basis of substantial evidence in light of the whole record”]; Megaplex, supra, 149 Cal.App.4th at p. 110; American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 1072; Friends of Davis v. City of Davis, supra, 83 Cal.App.4th at p. 1018; Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1075.) In conducting our review, we resolve all reasonable doubts in favor of the City’s decision. (Megaplex, at p. 112.) Moreover, it is appellant’s “burden to demonstrate there is not sufficient evidence in the record to justify the City’s action. [Citation.]” (Ibid.)
Appellant asserts that if the decision is discretionary as opposed to ministerial, the lead agency must prepare a subsequent EIR if the record contains substantial evidence of the triggering criteria. As described above, this is not the standard of review. Rather, “[a]n agency’s decision that a subsequent EIR is not required must be upheld if the record contains relevant evidence that a reasonable mind might accept as adequate to support the agency’s conclusion.” (2 Kostka & Zischke, Practice Under The Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) § 19.51, pp. 929-930 (Practice Under CEQA).)
Appellant contends that the City erred in failing to require a subsequent EIR, arguing that the Williamson Act determination was a discretionary determination, requiring the City Council to weigh and deliberate on the evidence and to determine whether to rely on the existing EIR and addendum or to require a new subsequent EIR. It is true that the “duty to comply with CEQA arises any time a public agency must make a discretionary decision about whether to approve or carry out a project that is not exempt from CEQA.” (2 Practice Under CEQA, supra, § 19.37, p. 909.) However, “[w]hen a lead or responsible agency makes a subsequent discretionary decision on a project, it ordinarily may rely on the previous EIR or negative declaration without evaluating whether a subsequent or supplemental EIR is required. Neither CEQA nor the Guidelines require such an evaluation. [Citation.]” (Id., § 19.37, p. 910, italics added.) Although the better practice when relying on a previous EIR or negative declaration is for the agency to make an explicit decision on the subsequent or supplemental EIR question (see id., § 19.37, p. 911), failure to do so does not provide an independent basis for overturning the decision. (But see City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005, 1017 (City of San Jose).)
City of San Jose, supra, 192 Cal.App.3d 1005, upon which appellant relies, involved San Jose’s condemnation action to acquire a water company’s right to provide water service to a proposed expansion of a redevelopment area. The EIR for the proposed expansion contemplated the Great Oaks Water Co. would supply water from its existing wells. In the condemnation action, Great Oaks objected to the fact no supplemental EIR was prepared to consider the effect of the city’s substitution of itself for Great Oaks as the provider of water service. San Jose proposed supplying water from three new wells. In the condemnation action below, Great Oaks put on evidence that the proposed new wells were to be drilled to a depth which would pose a risk of overdraft of the underground water table and were to be located in close proximity to known established underground toxic contamination from area industry. (Id. at pp. 1014-1015.) The court ruled that San Jose’s complete failure to consider whether a subsequent EIR or an addendum to the final EIR was necessary constituted a violation of CEQA and that the trial court did not err in dismissing the city’s eminent domain action on that ground. (Id. at p. 1017.) “[T]he City violated CEQA by failing to make a determination whether a subsequent or supplemental EIR was required by the redesign of the project, or whether an addendum to the final EIR would suffice” (ibid) where evidence in the record appeared to show that the changes in the project design were sufficiently substantial to require revisions of the EIR.
The circumstances of City of San Jose, supra, 192 Cal.App.3d 1005, were very different from those here. In City of San Jose, Great Oaks submitted evidence in the condemnation action that the city’s decision to substitute itself for the water supplier substantially changed the nature of the project by changing the sources of the water supply. All discussion in the EIR was based on the assumption that Great Oaks would supply the water with its own existing facilities. The court’s conclusion was necessarily informed by the premise that a significant redesign of the project had occurred, with impacts sufficient to require either a subsequent or supplemental EIR or an addendum. That is not the case here.
“ ‘CEQA does not require that findings be adopted when an agency determines that a subsequent EIR is not required. An implied finding that a further EIR is not required under [Public Resources Code section] 21166 is sufficient as long as it is supported by substantial evidence.’ ([Citation]; see also Benton [v. Board of Supervisors (1991) 226 Cal.App.3d 1467] at p. 1483.)” (Megaplex, supra, 149 Cal.App.4th at pp. 114-115; see 2 Practice Under CEQA, supra, § 19.46, p. 920.) “Although formal findings are not required, the Guidelines provide that some explanation of the decision not to prepare a subsequent EIR should be included in the record. [(Guidelines, § 15164, subd. (e).)] Such an explanation is required, however, only if one of the threshold conditions that can trigger the need for a further EIR (a change in the project, its circumstances, or new information) exists.” (1 Practice Under CEQA, § 19.43, p. 922.)
G. Substantial evidence supports City’s failure to require a subsequent EIR for the section 51292 Williamson Act findings
(1) Statute of limitations.
As we have stated, Mitigation Measure D (requiring a second public street access) and the requirement of the tank site on the Stashak property were added under the 1992 Resolution No. 21090, updating the CEQA analysis in the 1988 EIR. These conditions were added to mitigate potential environmental impacts identified by the Fire Chief. Resolution No. 21698, adopted in March 1994 approving the developer’s tentative map for the 10-phase Skyhawk subdivision, found the project would comply with the mitigation monitoring plan previously adopted, including Mitigation Measure D and also specifically recognized that “[w]ater service and fire flow impacts had been mitigated through a mitigation agreement entered into by the developer, providing for required water and fire flow infrastructure.” The March 1994 resolution approved the tentative map subject to “[c]ompliance with the Development Advisory Committee report dated December 21, 1993, as modified by Planning Commission Resolution No. 8479.” That 1993 Development Advisory Committee Report specifically identified the deeding of the reservoir site together with accompanying access, utility and construction easements as set forth in the agreement to grant offsite easements between the developer and the Stashaks as a condition of approval.
The March 1994 Resolution No. 21698 expressly found that a subsequent EIR was not required, after considering the triggering criteria of Public Resources Code section 21166 and Guidelines section 15162. Specifically, the City Council at that time found “[t]he record did not demonstrate any substantial new information that identified impacts which would be more significant than described in the prior environmental document” (Resolution No. 21698, ¶ 13); that substantial changes have not occurred that would require important revisions to the previous environmental document (id., ¶ 19); and that information requiring the preparation of a subsequent EIR was not presented (id., ¶ 20).
The secondary road easement and the temporary and permanent easements for the water tank access and maintenance roadway that became the EVA roadway were thus mitigations required by the City during its environmental review process in March 1994. Although the developer-Stashak agreement was recorded on April 5, 1994, after the March hearing and resolution, the agreement was reached before the meeting and was expressly made a condition of approval by the City Development Advisory Committee, whose report was expressly adopted by the Council in Resolution No. 21698.
The CEQA analysis of a project must include discussion of secondary effects of a mitigation measure where the mitigation measure would itself create new significant effects. (Guidelines, § 15126.4, subd. (a)(1)(D); Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027.) The secondary roadway mitigation measure was before the City Council in 1992, and again in 1994. The temporary and permanent easements for the water tank and pipeline maintenance road that became the EVA were before the City Council in 1994 when it adopted Resolution No. 21698 approving the tentative map. Consequently, appellant’s CEQA claim that environmental review of the secondary roadway and the EVA was insufficient and a subsequent EIR was necessary, should have been brought in 1994 as a challenge to the temporary map approval. (Pub. Resources Code, § 21167.) Unless appellant can demonstrate that Public Resources Code section 21166 required a subsequent EIR in May 2005, appellant’s challenge to these conditions is time-barred as it was not brought within the CEQA limitations period for the 1994 tentative map approval. (See Pub. Resources Code, §§ 21167, 21167.2.)
This applies as well to appellant’s related claims that the review of environmental impacts did not occur in the 1992 and 1994 resolutions and that Resolution No. 21090 was not a proper CEQA addendum.
(2) Substantial evidence that Public Resources Code section 21166 does not apply.
Appellant argues that, at the time of making the Williamson Act findings, a subsequent EIR was required because the record contains substantial evidence of the existence of the conditions set forth in Public Resources Code section 21166. Section 21167.2 provides that where no action is begun during the period prescribed in section 21167, the EIR “shall be conclusively presumed to comply with the provisions of this division . . ., unless the provisions of Section 21166 are applicable.” We have described the standard of review applicable to challenges to an agency’s failure to adopt a subsequent EIR pursuant to section 21166. Appellant contends that the location of the secondary access street and of the EVA were not part of the temporary map conditions of approval. Appellant also argues that asphalt paving of the pipeline maintenance road and doubling of its width were significant changes in the project. Appellant further argues that changed circumstances required a subsequent EIR, including: a change in the City General Plan to prohibit building on slopes of more than 25 percent; a report that the first phase of Skyhawk had resulted in scarred hillsides and obtrusive residences; a 2003 fire occurred in the canyon in which phases 9 and 10 were to be built.
Appellant argues that the 1988 EIR did not discuss the secondary public street or the EVA. However, the secondary access road was a mitigation measure required by the 1992 and 1994 resolutions. The City proceeded under Public Resources Code section 21166 in 1994, knowing it was imposing conditions requiring the second public access road and the water system access and maintenance road that became the gated EVA. The EVA was placed in the same location as the temporary water tank access and maintenance roadway, included in the 1994 approval as a mitigating condition. The water tank roadway access easement (right side of the inverted “V”) was originally described to be a “minimum of 12 feet wide” within a 15 foot-wide temporary access easement. (Italics added.) That roadway was intended to be covered with all weather shale on slopes less than 10 percent and pavement on slopes greater than 10 percent during its use as a temporary access easement.
The 15-foot wide permanent pipeline and maintenance road easement (left side of the inverted “V”) described in the 1994 developer-Stashak agreement was to be improved with earth tone aggregate over a 12-foot width between Sunhawk Drive and the City’s urban boundary and between the City’s urban boundary and the water tank with all weather shale on slopes of less than 10 percent and pavement on slopes greater than 10 percent.
At a public hearing on May 18, 2004, in response to a citizens’ complaints about paving of the access and maintenance service roads, the City’s Deputy Director of Community Development stated that all work being done had been approved, appropriately permitted and “that the road [was] being paved because it exceeds a 10% slope which requires pavement for safety.” The staff report before the City Council in connection with the Williamson Act hearing on May 3, 2005, included a detailed discussion of the size, location, and composition of the second public road and the EVA and a description of the land they traverse. The second public road was described as 900 feet long, within a 36-foot wide easement, allowing for two 12-foot wide travel lanes and a 4-foot pathway on one side, with curb, gutter and streetlights. The EVA was described by staff as 2,400 feet long, 20-foot wide paved and gated. The Council could reasonably determine that the secondary public road and the EVA were not “[s]ubstantial changes . . . proposed in the project which will require major revisions of the environmental impact report.” (Pub. Resources Code, § 21166.)
Appellant argues that circumstances have changed substantially since the original EIR was certified in 1988. Again, the question is whether substantial evidence supports the City’s failure to find either that there has occurred substantial change in the circumstances under which the project is being undertaken, which will require major revisions in the environmental impact report (Pub. Resources Code, § 21166, subd. (b)), or that “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, bec[ame] available.” (Pub. Resources Code, § 21166, subd. (c).)
Initially, we point out that appellant’s assertion that the City’s General Plan now prohibits building on slopes over 25 percent finds no support on the pages cited in appellant’s opening brief. Nor has appellant referred us to any other place in the administrative record supporting this assertion in connection with this argument. Appellant’s briefing is inadequate to support this claim and it is waived. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 9:36, pp. 9-11 to 9-12.)
Our own review of the record discloses that appellant raised the issue in e-mails with City officials before and after the May 3, 2005 hearing. In the trial court, appellant sought judicial notice of portions of the General Plan that appear to prohibit grading of slopes greater than 25 percent. It is unclear whether judicial notice was taken and the material provided is inadequate to allow us to determine that the document supplied was the General Plan.
Moreover, were we to consider such a factor, we are persuaded that a change in the City’s General Plan to prohibit building on slopes of more than 25 percent does not constitute the type of changed circumstance contemplated in Public Resources Code section 21166. Appellant asserts that, after the tentative map was approved, the City changed its General Plan to prohibit building on slopes of more than 25 percent. Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644 (Youngblood), holds that “a county lacked discretion under the [Subdivision] Map Act to deny a final subdivision map if the application showed the development substantially conformed to the tentative map and its attendant conditions.” (City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1190-1119.) When all the conditions pertaining to the tentative map have been met, approval of the final map is a purely ministerial duty. (Youngblood, at p. 648; Great Western Sav. & Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 410 [“governing body’s function is administrative, ministerial and mandatory where the final tract map” complies with local laws and conditions imposed on tentative map].) The Supreme Court reasoned that once a “tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval,” which “will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land.” (Youngblood, at p. 655.) Appellant has cited no case holding that the amendment of a general plan after tentative map approval is the type of changed circumstance or new information that should trigger a supplemental EIR determination. Such a conclusion would significantly undermine the holding of Youngblood.
Appellant claims that substantial change in circumstances occurred in that the first phase of the Skyhawk development had resulted in scarred hillsides and obtrusive residences, citing a 2001 “Survey and Analysis of Hillside and Ridgeline Subdivisions in Santa Rosa.” Appellant relies upon the survey document that it had submitted in connection with appellant’s request for judicial notice in the trial court and to a power-point presentation it presented to the Council in connection with its appeal of the final map approval occurring on June 14, 2005, more than a month after the Council’s Williamson Act findings that are asserted by appellant to have triggered the supplemental EIR requirement. There is no showing that survey was presented to the City in connection with the Williamson Act determination. Nor does appellant point to the trial court’s actually taking of judicial notice of the survey. In any event, the City Council could well determine that the partial build-out of the project itself should not constitute the type of substantial change in circumstances contemplated by the statute. Otherwise, every subsequent discretionary approval would provide the opportunity to assert that substantial changes in circumstances were wrought by construction of the very project previously certified by the EIR.
Appellant also asserts that a 2003 fire occurring in the canyon in which phases 9 and 10 were to be built provided new information requiring a supplemental EIR. The City Council was not required to so conclude. The possibility of fire was a real concern throughout the EIR process. The Mitigation Measure D relating to the secondary public access road condition, as well as the EVA insisted upon by the Fire Chief and the Council, reflect this concern for adequate water, emergency access and evacuation routes in case of the type of fire that apparently occurred. The Council could well determine that the actual occurrence of the fire was not a substantial change in circumstance or new information requiring a subsequent EIR.
Finally, appellant points to the fact that the secondary roadway and the EVA traverse land under a Williamson Act contract as substantial evidence of changes in the project and its circumstances. Whether or not the City realized or focused on the fact that the land was under contract when it required the mitigation measures, the fact remains that the subject Stashak property has been under Williamson Act contract since 1967. This was not a “change” in the project or the circumstances. Nor was this the type of “[n]ew information, which was not known and could not have been known at the time” of the previous environmental impact determinations, contemplated by Public Resources Code section 21166, subdivision (c). (Italics added.) Substantial evidence supports the City’s failure to require a subsequent EIR on this ground.
We conclude that substantial evidence supports the City’s failure to require a subsequent EIR at the time it made Williamson Act section 51292 findings.
II. Subdivision Map Act Findings and the City Code
Appellant claims the City violated Government Code sections 66458 and 66473 of the Subdivision Map Act, and City Code section 19-28.240(C), by approving a final map that did not substantially conform to the conditions of the 1994 tentative map, because a second access road was not “guaranteed,” as required by Mitigation Measure D in the City Council’s Resolution No. 21090. That condition of approval provided: “A final map for lots 403 through 437 shall not be requested or filed by Developer or approved until a second public street access to these lots, as approved by the City, can be guaranteed to occur prior to, or simultaneously with, development of these lots. The required second public street access to these lots may be provided through public street access from Sunhawk Drive to Yerba Buena Road and/or from Sunhawk Drive to Los Alamos Road or through other alternate means acceptable to the Fire Marshall and City Engineer. Without access, a final map will not substantially conform to any approved tentative map and will be denied pursuant to Government Code Section 66473.” (Resolution No. 21090, § 1.d., italics added.)
“The legislative body shall . . . approve the map if it conforms to all the requirements of this chapter and any local subdivision ordinance applicable at the time of approval or conditional approval of the tentative map and any rulings made thereunder. If the map does not conform, the legislative body shall disapprove the map.” (§ 66458, subd. (a).)
“A local agency shall disapprove a map for failure to meet or perform any of the requirements or conditions imposed by this division or local ordinance enacted pursuant thereto; provided that a final map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative map . . . .” (§ 66473.)
Santa Rosa City Code section 19-28.240(C) provides in relevant part: “The City Engineer-Community Development shall not approve the final map unless . . . he or she determines that the final map is in conformity with the requirements of this title, the Subdivision Map Act at the time the tentative map was approved, and in substantial compliance with the previously approved tentative map and any approved alterations thereof, and its conditions.” ( last visited August 8, 2008.)
This condition of approval was preceded by that set forth in Planning Commission Resolution No. 8169, passed on October 8, 1992. That portion of the resolution stated as follows: “Development of Lot Numbers 414-437, including approval of a Tentative Map for these lots, shall not occur until through public street access from Sunhawk Drive to Yerba Buena Road and/or from Sunhawk Drive to Los Alamos Road can be guaranteed to occur prior to, or simultaneously with, development of these lots.” (Planning Commission Resolution No. 8169, ¶ 3.a., italics added.)
Public Resources Code section 66474.1 states: “A legislative body shall not deny approval” of a final subdivision map “if it has previously approved a tentative map for the proposed subdivision and if it finds” the final map “is in substantial compliance with the previously approved tentative map.” As we recognized above, approval of the final map is a purely ministerial duty when all the conditions pertaining to the tentative map have been met. (Youngblood, supra, 22 Cal.3d at p. 648.)
The crux of appellant’s argument is that the condition of approval prevents the requesting, filing or approving of a final map until the second access road is guaranteed; that the guarantee must be in place in advance of the final map approval; and that the County of Sonoma has yet to make a determination as to compatibility with the Williamson Act. Because the County may not find the second access road compatible, it cannot be guaranteed. We disagree.
The question is whether the final map is “in substantial compliance” with the tentative map and its Mitigation Measure D. The critical language of the mitigation is “until a second public street access to [these lots], as approved by the City, [can] be guaranteed to occur prior to, or simultaneously with, development of these lots.” That mitigation measure leaves it to the City to determine how the “guarantee” was to occur. In connection with a City Council meeting of June 14, 2005, denying appellant’s appeal of the final map approval, the City Engineer advised the Council that the “second public street access has been guaranteed by the developer.” The staff report responded to appellant’s claim that the guaranteed second public street access condition had not been met by pointing out: “Construction drawings have been submitted, reviewed for compliance with City Standards, and approved for construction; [¶] A roadway easement has been deeded to the City by the property owner along the alignment of the road; [¶] Security, in the form of a Performance and a Labor and Material bond, has been submitted to the City in the amount of the cost of construction of the road; [¶] An agreement has been submitted to the City and signed by the developer stating that no Building Permits for any house within Units 9 and 10, will be issued until such time the road is constructed and accepted by the City.” The report also responded to appellant’s claims of a general failure to comply with applicable laws, (including unspecified provisions of the Subdivision Map Act) with information that “[t]he County has determined its approval is not required in regard to the road.”
Appellant argues that none of these constitutes a “guarantee” in light of the County’s continuing role in approval of the road. We disagree. The City and County have signed a MOU acknowledging it was appropriate for the City to assume responsibility in the unincorporated area involved, for issuing permits and inspecting construction of the maintenance access road, water main, water reservoir and other site improvements to be performed in conjunction with the construction of Skyhawk subdivision units 8, 9 and 10. To the extent that questions remain regarding the need for the County to make a finding of compatibility within the meaning of the Williamson Act, the City has provided for the possibility that the County would not find the roadways compatible by requiring that no building permits will be issued and, therefore, no houses will be built until the roads are actually constructed, the City determines that the construction has taken place in accordance with the engineered plans, and “upon securing the consent of any other governmental entity which may be required.” (2005 “Agreement and Offer to Dedicate and Acceptance of Access Easements,” ¶ 4(b), p. 3.) If the County denies a finding of compatibility, the houses cannot be built, unless another solution is found and the roads are in place.
Real parties posit as examples of such “solutions” that the County could allow cancellation of the Williamson Act contract, the contract covering the easement locations could legally expire, or the County itself could condemn the road and EVA locations. (§§ 51245, 51282-51284, 51292.) We do not opine as to the legality or likelihood of the proposed alternative solutions.
The City reasonably determined the final map substantially conformed to the tentative map and its conditions because the second road was “guaranteed” to exist before the lots are developed. The road easement had been conveyed to the City by the Stashaks, and accepted “subject to improvement”; engineered construction drawings for the second public street access and EVA had been submitted and approved; the money for construction of the roads was secured; and the developer had signed an agreement with the City that no building permits would be issued until the roadways were constructed, accepted by the City, and any consents required from other governmental agencies secured. Substantial evidence supports the City’s determination that the second public street access was guaranteed to occur prior to or simultaneously with the development of the lots in phases 9 and 10.
DISPOSITION
The order denying the petition for writ of mandate is affirmed. Each party shall bear its own costs on appeal.
We concur: Haerle, J., Lambden, J.
The cancellation of an agricultural preserve or easements is normally considered a discretionary act. (E.g., Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 849, superseded by statute on other grounds as stated in Friends of East Willits Valley, supra, 101 Cal.App.4th at pp. 204-205.) Guidelines section 15317 exempts from the application of CEQA “the establishment of agricultural preserves, the making and renewing of open space contracts under the Williamson Act or the acceptance of easements or fee interests in order to maintain the open space character of the area. The cancellation of such preserves, contracts, interests, or easements is not included and will normally be an action subject to the CEQA process.” (Italics added.) The instant action did not result in the cancellation of a contract. Nevertheless, it is likely the findings under section 51292, if required to allow a public improvement within an agricultural preserve, would also be discretionary and subject to the CEQA process.
With respect to the latter claim, although Resolution No. 21090 did not identify itself as an EIR addendum, it met the criteria for an addendum set forth in Guidelines section 15164 as it read in November 1992, when Resolution No. 21090 was adopted, as follows:
“(a) The lead agency or responsible agency shall prepare an addendum to an EIR if: [¶] (1) None of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred; (2) Only minor technical changes or additions are necessary to make an EIR under consideration adequate under CEQA; and (3) The changes to the EIR made by the addendum do not raise important new issues about the significant effects on the environment.
“(b) An Addendum need not be circulated for public review but can be included in or attached to the final EIR.
“(c) The decision making body shall consider the addendum with the final EIR prior to making a decision on the project.” (Former Guidelines, § 15164, effective April 1, 1990.) (Cal. Code Regs., tit 14, § 15164 (Register 90, No. 14 (April 9, 1990)) p. 684.)