Summary
In Farmland Protection, plaintiffs challenged a county's decision to adopt a mitigated negative declaration for a project.
Summary of this case from Save The Field v. Del Mar Union Sch. Dist.Opinion
C087688
11-03-2021
FARMLAND PROTECTION ALLIANCE et al., Plaintiffs and Appellants, v. COUNTY OF YOLO et al., Defendants and Respondents; Field & Pond et al., Real Parties in Interest and Appellants.
Lewis Brisbois Bisgaard & Smith, John S. Poulos, Sacramento, and Christopher R. Rodriguez, for Plaintiff and Appellant Farmland Protection Alliance; Christian C. Scheuring, for Plaintiff and Appellant Yolo County Farm Bureau. Philip J. Pogledich, Yolo County Counsel, Eric May, Deputy County Counsel, for Defendants and Respondents County of Yolo and Yolo County Board of Supervisors. Stoel Rives, Timothy M. Taylor and Lauren V. Neuhaus, Sacramento; Barth Daly and Thomas W. Barth, for Real Parties in Interest and Appellants Field & Pond, Dahvie James and Philip Watt.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II through IV of the Discussion.
Lewis Brisbois Bisgaard & Smith, John S. Poulos, Sacramento, and Christopher R. Rodriguez, for Plaintiff and Appellant Farmland Protection Alliance; Christian C. Scheuring, for Plaintiff and Appellant Yolo County Farm Bureau.
Philip J. Pogledich, Yolo County Counsel, Eric May, Deputy County Counsel, for Defendants and Respondents County of Yolo and Yolo County Board of Supervisors.
Stoel Rives, Timothy M. Taylor and Lauren V. Neuhaus, Sacramento; Barth Daly and Thomas W. Barth, for Real Parties in Interest and Appellants Field & Pond, Dahvie James and Philip Watt.
Robie, J.
Defendants Yolo County and its board of supervisors (collectively the County) adopted a revised mitigated negative declaration and issued a conditional use permit (decision) to real parties in interest Field & Pond, Dahvie James, and Philip Watt (collectively real parties in interest) to operate a bed and breakfast and commercial event facility supported by onsite crop production intended to provide visitors with an education in agricultural operations (project). In the suit that followed, the trial court found merit in three of several arguments presented to challenge the decision. Specifically, the trial court found substantial evidence supported a fair argument under the California Environmental Quality Act (Act) that the project may have a significant impact on the tricolored blackbird, the valley elderberry longhorn beetle (beetle), and the golden eagle (collectively the three species). The trial court ordered the County to prepare an environmental impact report limited to addressing only the project's impacts on the three species . The trial court further ordered that, pending the further environmental review, the project approval and related mitigation measures would remain in effect and the project could continue to operate.
Plaintiffs and appellants Farmland Protection Alliance and Yolo County Farm Bureau (collectively plaintiffs) appeal. Plaintiffs contend the trial court violated the Act by: (1) ordering the preparation of a limited environmental impact report, rather than a full environmental impact report, after finding substantial evidence supported a fair argument the project may have significant effects on the three species; (2) finding the fair argument test was not met as to agricultural resource impacts; and (3) allowing the project to continue to operate during the period of further environmental review. Plaintiffs also argue the trial court erred in upholding the County's determination that the project is consistent with the Yolo County Code (Code) and the Williamson Act (also known as the California Land Conservation Act of 1965; Gov. Code, § 51200 et seq. ). The County and real parties in interest assert the trial court appropriately ordered the preparation of a limited environmental impact report under Public Resources Code section 21168.9 and disagree with the remainder of plaintiffs’ arguments.
Petitioner Tuleyome was originally a party to this appeal but was dismissed for failing to timely file an opening brief.
All further section references are to the Public Resources Code unless otherwise specified.
Real parties in interest cross-appeal, asserting the trial court erred in finding substantial evidence supported a fair argument the project may have significant impacts on the three species. They request an order vacating the judgment requiring the preparation of the limited environmental impact report (even though the limited environmental impact report has already been certified by the County). Plaintiffs believe the trial court appropriately found the fair argument test was met as to each of the three species.
In the published portion of the opinion, we conclude section 21168.9 does not authorize a trial court to split a project's environmental review across two types of environmental review documents (i.e., a negative declaration or mitigated negative declaration and an environmental impact report). The Act requires an agency to prepare a full environmental impact report when substantial evidence supports a fair argument that any aspect of the project may have a significant effect on the environment. Section 21168.9 was enacted to provide a trial court with flexibility in fashioning remedies to ensure compliance with the Act; it does not authorize a trial court to circumvent the mandatory provisions thereof. Indeed, to find otherwise would strike a death knell to the heart of the Act, which is the preparation of an environmental impact report for the project , as provided in the third tier of the environmental review process. The trial court thus erred in ordering the County to prepare a limited environmental impact report after finding the fair argument test had been met as to the three species.
In the unpublished portion of the opinion, we conclude the trial court did not err in: (1) upholding the County's determination that the project is consistent with the Code and the Williamson Act; and (2) finding substantial evidence supports a fair argument the project may have a significant effect on the beetle. In light of our conclusion in the published portion of the opinion and concluding the fair argument test was met as to the beetle, we thus reverse the trial court's judgment requiring the preparation of a limited environmental impact report and remand with directions to issue a peremptory writ of mandate directing the County to set aside its decision to adopt the revised mitigated negative declaration and to prepare a full environmental impact report for the project. Having concluded a full environmental impact report must be prepared, we do not consider plaintiffs’ and real parties in interest's remaining fair argument challenges as to agricultural resources, the tricolored blackbird, or the golden eagle. We also do not consider plaintiffs’ argument that the trial court erred in allowing the project to operate while the limited environmental impact report was being prepared. In accordance with the judgment, the County filed a return to the peremptory writ of mandate stating the limited environmental impact report ordered by the trial court had been certified. Given the portion of the judgment allowing the project to operate during the period of further environmental review no longer has any effect, there is no effectual relief we can provide to plaintiffs by reaching the merits of their contention. The issue is thus moot, and we do not consider the argument. ( Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717.)
We grant the County's and real parties in interest's request to take judicial notice of certain sections of the Code, portions of the County's 2030 Countywide General Plan (adopted November 10, 2009), and the return to peremptory writ of mandate filed in the trial court, including the exhibits attached thereto. We note, however, that the County and real parties in interest repeatedly cite to/discuss statements and conclusions contained in the final environmental impact report prepared in response to the judgment at issue in this appeal, which is attached to the return to peremptory writ of mandate. We take judicial notice solely of the fact that the return to peremptory writ of mandate and accompanying exhibits were lodged and filed in the trial court. As this court has previously explained, " ‘[t]he truth of the matters alleged in [a document] is not the proper subject of judicial notice.’ " (Gilman v. Dalby (2021) 61 Cal.App.5th 923, 930, 276 Cal.Rptr.3d 137.) Moreover, any statements or conclusions in the final environmental impact report prepared after the judgment was entered are irrelevant to the issues before this court on appeal. We also note real parties in interest refer us to pages in a document designated "RJN, Attachment 1, Exhibit C, DEIR" in several places in their opening brief. We have found no document labeled "attachment" in the documents attached to the request for judicial notice and thus are unable to identify the document real parties in interest attempt to reference.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Project
The project is divided into three elements: an event facility, lodging, and agriculture. "The project is a request for a Use Permit to operate a large bed and breakfast ... and large special events facility, known as Field & Pond, on agriculturally-zoned property that has historically been identified as the ‘William Cannedy Farm.’ The project site is located approximately five or six miles northwest of the City of Winters on the northern portion of an 80-acre parcel, which is currently in use as a home site that includes three dwellings, three barns, a water tower, several grain silos, and a two-acre fishing pond. The home site is currently also being used for special events up to one paid for profit event per month, not to exceed eight per year, as allowed by the County Code. Chickahominy Slough bisects the property separating the home site areas that encompass approximately 11 acres (where the project will be located) from the southern portions that at one time were used as grazing land and contain oak woodlands in hilly terrain." (Underlining omitted.)
"The project proposal includes use of the property grounds and existing structures as a large [bed and breakfast] and large event center that would accommodate lodging for up to nine guest rooms, as well as indoor/outdoor events for up to 300 attendees per event (with most events drawing around 120 people) with up to 35 events for the first year of operation. If the first year of events is successful, the applicant may seek to increase the number of yearly events March through November."
As to the agriculture component, "[t]he project proponents plan to enhance the agricultural value of the land by converting portions of the property that show a potential for supporting food crops, such as herbs, vegetables, nuts, and stone fruit. These crop producing endeavors would be managed by a resident farmer seeking an opportunity to farm a plot of land and provide educational outreach to visitors of Field & Pond through participation in a weekend farming program and urban youth program. Specifically, the project proposes planting tree crops on the northern portion of the property ...."
II
Procedural Background
The project's mitigated negative declaration was issued on March 8, 2016, and thereafter revised and recirculated with a new publication date of June 2016. Pertinent to this appeal, the project's revised mitigated negative declaration identified potentially significant impacts to agricultural resources and four biological resources -- the beetle, swainson's hawk, tricolored blackbird, and western pond turtle. Accordingly, the revised mitigated negative declaration provided that, as a condition of project approval, the applicant would be required to implement the mitigation measures identified therein to mitigate those impacts.
On August 11, 2016, the County's planning commission denied real parties in interest's application for a use permit and declined to adopt the revised mitigated negative declaration prepared for the project. Real parties in interest appealed the decision to the County's board of supervisors (the board). On September 13, 2016, the board "approved the permit and took certain related actions," and adopted the mitigated negative declaration presented to it by County staff. The board, however, reconsidered its September 13, 2016, decision on October 11, 2016, because the mitigated negative declaration adopted by the board at the prior meeting was not the final version circulated for public review. On October 11, 2016, the board rescinded its prior action, approved the use permit with conditions, and adopted the revised mitigated negative declaration, errata, and a mitigation monitoring and reporting plan.
Plaintiffs and Tuleyome filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the County (petition), asserting the County's approval of the project violated the Act in several ways, was inconsistent with the Yolo County General Plan (general plan), violated the Williamson Act, and violated provisions of the Code.
The trial court granted the petition in part. It denied the majority of the challenges under the Act, and disagreed that the project was inconsistent with the general plan or violated the Williamson Act and provisions of the Code. It, however, granted the petition on three grounds. The trial court found substantial evidence supported a fair argument the project may have a significant impact on the three species. In the judgment, the trial court ordered the County to undertake further study and prepare a subsequent environmental impact report to address only the potential impacts of the project on the three species. In that regard, the trial court ordered the County to file a return to the peremptory writ of mandate setting forth all actions taken to comply with the writ and indicating whether the County certified the subsequent environmental impact report for the project. The trial court further ordered the project approval and related mitigation measures would remain in effect during the period of further environmental review, and real parties in interest could continue to operate the project under the County's permitting scheme.
Plaintiffs appeal. During the pendency of the appeal, the County filed a return to the peremptory writ of mandate in the trial court, stating it had undertaken further study, had prepared an environmental impact report regarding impacts to the three species, and had adopted a resolution certifying the environmental impact report, which found no significant impacts.
DISCUSSION
I
The Trial Court Erred In Ordering The County To Prepare A Limited Environmental Impact Report
Plaintiffs argue the trial court erred in ordering the County to prepare a limited environmental impact report because, "once evidence is presented that a project might have a substantial impact on the environment -- in any area -- the lead agency must proceed to prepare an environmental impact report ‘for the proposed project. ’ " (Citing Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 60 Cal.Rptr.3d 247, 160 P.3d 116.) The County and real parties in interest argue the trial court has "discretionary authority under Public Resources Code section 21168.9 to craft a proper remedy after finding certain part(s) of a finding does not comply with [the Act]" and nothing therein precludes a court from "impos[ing] appropriate lesser remedies to an [environmental impact report]." We agree with plaintiffs. The remedies under section 21168.9 do not trump the mandatory provisions of the Act. Section 21168.9 is intended to facilitate compliance with the Act; it does not provide a means to circumvent the heart of the Act -- the preparation of an environmental impact report for the project.
"[The Act's] review procedures can be viewed as a ‘ "three-tiered process." ’ [Citation.] The first tier requires an agency to conduct a preliminary review to determine whether [the Act] applies to a proposed project. [Citation.] If [the Act] applies, the agency must proceed to the second tier of the process by conducting an initial study of the project. [Citation.] Among the purposes of the initial study is to help ‘to inform the choice between a negative declaration and an environmental impact report ....’ [Citation.] If there is ‘no substantial evidence that the project or any of its aspects may cause a significant effect on the environment,’ the agency prepares a negative declaration. [Citation.] Alternatively, if ‘ "the initial study identifies potential significant effects on the environment but revisions in the project plans ‘would 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 that the project as revised may have a significant effect on the environment, a mitigated negative declaration may be used." ’ [Citation.] Finally, if the initial study uncovers ‘substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment ’ [citation], the agency must proceed to the third tier of the review process and prepare a full [environmental impact report] ." ( Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, 704-705, 194 Cal.Rptr.3d 169, italics added.) The environmental impact report requirement has been described as the heart of the Act. ( Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, 26 Cal.Rptr.2d 231, 864 P.2d 502.)
"The issue of whether an [environmental impact report] must be prepared is resolved by applying the fair argument test." ( Inyo Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 7, 102 Cal.Rptr.3d 522.) "Under this test, the agency must prepare an [environmental impact report] whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment." ( Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1399-1400, 43 Cal.Rptr.2d 170.) If a court finds the fair argument test has been met but the agency failed to prepare an environmental impact report, "the court must set aside the agency's decision to adopt a negative declaration [or a mitigated negative declaration] as an abuse of discretion in failing to proceed in a manner as required by law." ( City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 405, 117 Cal.Rptr.2d 582.) We find nothing in the text of the Act or common law interpreting the Act suggesting a project's impact analysis may be divided across the second and third tiers of environmental review such that some impacts are analyzed in a mitigated negative declaration and others are analyzed in an environmental impact report. Nor do real parties in interest present any such argument. Rather, as explained ante , if any aspect of the project triggers preparation of an environmental impact report, a full environmental impact report must be prepared in accordance with the definition of section 21061. ( San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402 & fn. 11, 83 Cal.Rptr.2d 836 [court's finding the fair argument test was met as to some aspects of the project did not mean an environmental impact report "can or should be limited to, or focused on, those aspects" but, rather, a full environmental impact report had to be prepared]; Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra , 41 Cal.4th at p. 381, 60 Cal.Rptr.3d 247, 160 P.3d 116 [the Act's "third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment" and triggers the preparation of "a full environmental impact report"], italics added.) In other words, the second and third tiers of environmental review under the Act are mutually exclusive -- the Act requires that an agency prepare either a negative declaration/mitigated negative declaration or prepare an environmental impact report for the project .
Nothing in section 21168.9 provides the trial court with the authority to disregard the mandatory three-tier approach under the Act and to split a project's impact analysis across two types of environmental review documents.
Section 21168.9, subdivision (a) applies when the trial court, "as a result of a trial, hearing, or remand from an appellate court," enters an order to remedy "any determination, finding, or decision of a public agency [that] has been made without compliance with" the Act. The section " ‘gives trial courts the option to void the finding of the agency ( § 21168.9, subd. (a)(1) ), or to order a lesser remedy which suspends a specific project activity which could cause an adverse change in the environment ( § 21168.9, subd. (a)(2) ), or to order specific action needed to bring the agency's action into compliance with [the Act] ( § 21168.9, subd. (a)(3) ). The choice of a lesser remedy involves the trial court's consideration of equitable principles.’ " ( Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 961, 130 Cal.Rptr.3d 527.)
The trial court did not identify which subsection of section 21168.9, subdivision (a) it purportedly applied in ordering the preparation of a limited environmental impact report (indeed, it did not identify section 21168.9, subdivision (a) at all). The County and real parties in interest also do not identify the specific subdivision that, in their opinion, would apply under the circumstances. We note the only subdivision pertinent to ordering an agency to take a specific action -- such as preparing a limited environmental impact report -- is subdivision (a)(3). But, as already explained, the Act requires the preparation of either a mitigated negative declaration (tier 2) or an environmental impact report (tier 3) for the project , depending on the circumstances and which tier of the process is triggered. The order to prepare a limited environmental impact report as to only certain impacts of the project did not constitute an order bringing the agency's action into compliance with the Act , as provided in section 21168.9, subdivision (a)(3). The only order that would have done so, given the trial court's finding that the fair argument test had been met as to the three species, was an order to prepare a full environmental impact report for the project.
Section 21168.9, subdivision (b) also does not support the trial court's order. That subdivision provides that "[a]ny order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division . However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. The trial court shall retain jurisdiction over the public agency's proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division." ( § 21168.9, subd. (b), italics added.) This subdivision also requires compliance with the Act; it does not give the trial court the power to circumvent the fundamental requirements thereof.
Given the trial court's finding the fair argument test had been met as to the three species, the only available remedy was to set aside the County's decision to adopt the revised mitigated negative declaration as an abuse of discretion in failing to proceed in a manner required by law. ( City of Redlands v. County of San Bernardino, supra , 96 Cal.App.4th at p. 405, 117 Cal.Rptr.2d 582.)
None of the cases relied upon by real parties in interest inform the discussion on this issue because none of those cases dealt with an order splitting the analysis of a project's environmental impacts across two types of environmental review documents, as here. (Citing Schenck v. County of Sonoma, supra , 198 Cal.App.4th at pp. 952-953, 130 Cal.Rptr.3d 527 [concluding county committed single nonprejudicial error in the notice procedure before issuing a mitigated negative declaration and substantial evidence did not support fair argument the project may have had a significant effect on the environment]; Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944, 207 Cal.Rptr.3d 314, 378 P.3d 687 [considering environmental review procedure when agency proposed change to previously approved project for which environmental review document had been issued]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 268, 148 Cal.Rptr.3d 310 [trial court may, in appropriate cases, remedy Act violations in an environmental impact report by issuing a limited writ of mandate].)
We conclude section 21168.9 was enacted to provide the trial court with flexibility in fashioning remedies to ensure compliance with the Act. The statute does not override the other mandatory provisions of the Act and does not give the trial court the authority to disregard the requirement that a full environmental impact report is required when substantial evidence supports a fair argument a proposed project may have a significant effect on the environment. Thus, the trial court erred in ordering the County to prepare a limited environmental impact report after finding substantial evidence supported a fair argument of significant environmental impacts to the three species.
See footnote *, ante .
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with instructions to issue a peremptory writ of mandate directing the County to set aside its decision to adopt the revised mitigated negative declaration and to prepare a full environmental impact report for the project. Plaintiffs shall recover their costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1)-(3).)
We concur:
Raye, P. J.
Renner, J.