Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 03CECG01576, Wayne R. Ellison, Judge.
Herum Crabtree, Brett S. Jolley and Natalie M. Weber for Plaintiff and Appellant.
Lozano Smith, David J. Wolfe and Scott G. Cross for Defendants and Respondents.
Caswell Bell & Hillison and Robert K. Hillison for Real Parties in Interest and Respondents.
OPINION
FRANSON, J.
This appeal is from a superior court judgment entered after the court refused to set aside the approval by the City of Clovis (City) of an environmental impact report (EIR) for a proposed 44-acre commercial shopping center. Appellant Save Our Crossroads Center (SOCC) contends that the City failed to proceed in the manner required by law in the EIR’s analysis of the project’s cumulative impacts on water resources and in its analysis of the project’s potential for causing urban decay. As we shall explain, we agree with the trial court’s conclusion that the EIR does not suffer from these claimed defects and will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
A six-acre shopping center presently exists on the northeast corner of Clovis and Herndon Avenues in the City. The proposed project is a 44-acre shopping center to be located adjacent to the existing six-acre site. The 44-acre project will have 491, 904 square feet of leasable commercial space. The anchor tenant is to be an approximately 228, 754 square foot Walmart store. Fifteen additional stores will occupy the project area, ranging from stores sized between 4, 400 and 88, 400 square feet. The project is to be bordered by Highway 168 to the north, Sunnyside Avenue to the east, Herndon Avenue to the south, and Clovis Avenue to the west.
The City initially approved conditional use permits for the project in 2003 without having prepared an EIR. Legal action brought by an entity called Association for Sensible and Informed Planning (ASIP) resulted in a July 2004 court order directing the City to void its approval of the site plan and to undertake environmental review of the project. The original EIR was completed in 2007 and was challenged in actions brought by ASIP and appellant SOCC. The actions were consolidated, and the consolidated action contended that the EIR was legally deficient in its analyses of the project’s impacts on air quality, energy, endangered species (Fairy Shrimp and the California Tiger Salamander), the project’s potential for causing urban decay, and the cumulative impacts of this project and other projects on water resources. The lawsuits also contended that the EIR failed to consider a reasonable range of feasible alternatives to the project, and that the City erred in concluding that the project was consistent with the City’s general plan.
The Crossroads Shopping Center is an already existing shopping center located near the project site.
The court found merit in two of these contentions -- the challenges to the EIR’s analyses of the project’s impacts on urban decay and cumulative impacts on water resources -- and expressly rejected “[a]ll other objections to the EIR.” The court’s August 2008 order concluded “the EIR is inadequate as an informational document under CEQA insofar as it failed to adequately analyze and consider the cumulative impacts of relevant planned projects both inside and outside the city limits on water resources and failed to consider the economic competitive effects of the project and other planned projects which might lead to urban decay.” The court issued a judgment granting a peremptory writ of mandate directing the City to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) by “revising the EIR to adequately analyze the Project’s cumulative impacts on water resources and potential for causing urban decay as identified in” the court’s order.
All further statutory references are to the Public Resources Code unless indicated otherwise.
The City then prepared a revised EIR (REIR) and, after three public hearings, approved the EIR for the project. The City asked the court to find that the City had complied with CEQA and to discharge the writ. SOCC objected. After briefing and a hearing, the court overruled SOCC’s objections and discharged the writ.
The final, approved EIR for the project consisted of (1) the original draft EIR, (2) the original final EIR, (3) the draft revised EIR (draft REIR), and (4) the final revised EIR (final REIR).
STANDARD OF REVIEW
“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 (Vineyard Area Citizens).) The standard for review of the adequacy of an EIR was explained in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights), as follows:
“The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ (§ 21001, subd. (a).) The EIR is therefore ‘the heart of CEQA.’ (Guidelines, § 15003, subd. (a) ; County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.) An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ (Ibid.; Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 822.) The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.’ (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86 [hereafter No Oil]; Guidelines, § 15003, subd. (d).) Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. (People v. County of Kern (1974) 39 Cal.App.3d 830, 842; Guidelines, § 15003, subd. (e).) The EIR process protects not only the environment but also informed self-government.
“The regulations guiding application of CEQA, found in title 14 of the California Code of Regulations, section 15000 et seq., are often, and will sometimes be here, referred to as the CEQA Guidelines. ‘The CEQA Guidelines, promulgated by the state’s Resources Agency, are authorized by Public Resources Code section 21083. In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.’ [Citation.]” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, fn. 4 (Communities for a Better Environment).)
“Section 21168.5 provides that a court’s inquiry in an action to set aside an agency’s decision under CEQA ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ As a result of this standard, ‘The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.)
“This standard of review is consistent with the requirement that the agency’s approval of an EIR ‘shall be supported by substantial evidence in the record.’ (Guidelines, § 15091, subd. (b).) In applying the substantial evidence standard, ‘the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.’ (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.) The Guidelines define ‘substantial evidence’ as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ (Guidelines, § 15384, subd. (a).)
“A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 401-402.) A court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ (Bozung [v. Local Agency Formation Com. (1975)] 13 Cal.3d 263, 283.)” (Laurel Heights, supra, 47 Cal.3d at pp. 392-393, fn. omitted; see also Vineyard Area Citizens, supra, 40 Cal.4th at p. 426-427.)
An appellate court’s review of an agency’s procedural compliance with CEQA is de novo. “[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions.” (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.)
I. THE EIR’S ANALYSIS OF CUMULATIVE IMPACTS ON WATER RESOURCES DID NOT USE AN IMPROPER “BASELINE”
Appellant contends that the City failed to proceed in the manner required by law because it used the wrong baseline in its water analysis by not measuring the Project’s anticipated water demand of 80 acre-feet against the existing usage of zero acre-feet. We agree with the trial court that the flaw in this argument lies in its premise - that the City did not assume the project site had “zero water use” in its pre-project state. Instead, the EIR points out that the site is “fallow vacant land” and includes pictures of it. The EIR points out that the anticipated demand from the project is 80 acre-feet per year of water. Elsewhere in the EIR, the document states the same thing, though in a slightly different manner - that the smaller, already existing shopping center at the northeast corner of Herndon and Clovis Avenues has an annual water demand of 10.8 acre-feet, that the 44-acre project in issue in this case will present an additional annual demand of 79.2 acre-feet, for a total annual demand of 90 acre-feet of water for the entire 50-acre area when the proposed 44-acre project is completed. In short, undeveloped 44-acre project area presently uses no water. Appellate concedes this point.
Section 15125, subdivision (a) of the CEQA Guidelines states that the “environmental setting” of a proposed project “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” Appellant contends that the EIR violates this guideline, and relies on Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683 (Woodward Park) and Communities for a Better Environment, supra, 48 Cal.4th 310.
In Woodward Park, the project was a 38.93-acre commercial development to include 274, 000 square feet of office space and a 203, 000 square foot shopping center. The project site was a vacant lot. Rather than evaluate the environmental effects of building this large project on a vacant lot, the EIR compared the project’s impacts “with those of the maximum buildable development under existing zoning and plan designations.” (Woodward Park, supra, 150 Cal.App.4th at p. 707.) Our opinion in Woodward Park pointed out that the reader of an EIR that informs the reader the air pollution and traffic impacts generated by a project “will be less than the given benchmark” of a non-existent large office park would still be “left wondering whether the impacts would be slight or major in relation to vacant land.” (Id. at p. 709.)
Communities for a Better Environment involved a comparable scenario. A petroleum refinery undertook a project which required, in part, substantially increasing the refinery’s operation of an already existing cogeneration plant and four boilers. The air quality management district determined that an EIR for the project was not required because even though the increased operation of the cogeneration plant and four boilers would substantially increase harmful nitrogen oxide emissions, “the District did not consider these increases to be part of the Diesel Project because they did not exceed the maximum rate of heat production allowed under existing permits.” (Communities for a Better Environment, supra, 48 Cal.4th at p. 318.) The court found that this violated section 15125, subdivision (a) of the Guidelines. “[T]he District’s choice of a baseline for (nitrogen oxide) emissions was inconsistent with CEQA and the CEQA Guidelines; the District should have looked to the existing physical conditions, rather than to the maximum permitted operation of the boilers.” (Communities for a Better Environment, supra, 48 Cal.4th at p. 319.)
The reader of the EIR in the case before us, however, is informed that the project will require 80 acre-feet per year of water if it is built, and zero if it is not built. The reader is told that the project “will not have a significant cumulative water supply impact” because of an anticipated supply of 81 acre-feet, as evidenced by a Water Resources Cumulative Impact Investigation (Investigation) appearing as Exhibit C to the draft REIR. This Investigation, referred to by the parties as the Provost & Pritchard study, concludes that, because of the Kings River Water/Fresno Irrigation District entitlement of 81 acre-feet per year, “the City of Clovis has sufficient water supplies available to satisfy water needs of the Clovis-Herndon Shopping Center as well as all reasonably foreseeable future users.” The “Clovis-Herndon Shopping Center” is the 44-acre project. A fair reading of the approved EIR starts with a present water use of zero, the project’s “need” of 80 acre-feet per year, and an annual water supply of 81 acre-feet, hence, there will be no significant cumulative impact on water supplies as a result of the project.
Appellant also argues that because the City used an improper baseline of 81 acre-feet in its cumulative water analysis, insufficient evidence was presented to support that conclusion. But because we reject appellant’s contention that the City used an improper baseline analysis and therefore failed to proceed in the manner required by law, we need not and do not address the sufficiency of the evidence to support the City’s conclusion that the project will not have a significant cumulative water supply impact. We do note, however, that the Provost & Pritchard study points out that one of the sources of water for the project is Kings River water obtained from the Fresno Irrigation District, that a “normal year runoff volume for the Kings River” is 455, 000 acre-feet, and that “the volume of water required from [Fresno Irrigation District] to support the Clovis-Herndon Shopping Center is negligible compared to [Fresno Irrigation District’s] Kings River entitlement.”
We acknowledge that there is language in the EIR which a reader could justifiably view as bordering on disingenuous. For example, the REIR’s “Conclusion” section (“5.0”) states “the project will have a positive impact to the city’s water supply by consuming a minimum of 1 acre feet of water per year less than planned in the City’s Water Master Plan.” It also states “the Supplemental Water Study along with the fact the project will have a net water supply increase supports the fact that the project will not have cumulative water supply impacts.” We would not characterize a project’s use of less water than planned in the City’s Water Master Plan as having “a positive impact to the City’s water supply.” As SOCC points out, the project will use water and will not create water. The use in a cumulative impacts analysis of projections contained in planning documents is not, however, a failure to proceed in the manner required by law. It is proceeding in a manner expressly authorized by law. (See Guidelines, § 15130, subd. (b)(1)(B).)
II. THE EIR’S ANALYSIS OF THE PROJECT’S POTENTIAL FOR CAUSING URBAN DECAY COMPLIED WITH CEQA
In Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens), this court stated: “[P]roposed new shopping centers do not trigger a conclusive presumption of urban decay. However, when there is evidence suggesting that the economic and social effects caused by the proposed shopping center ultimately could result in urban decay or deterioration, then the lead agency is obligated to assess this indirect impact. Many factors are relevant, including the size of the project, the type of retailers and their market areas and the proximity of other retail shopping opportunities. The lead agency cannot divest itself of its analytical and informational obligations by summarily dismissing the possibility of urban decay or deterioration as a ‘social or economic effect’ of the project.” (Id. at p. 1207.) Our conclusion in Bakersfield Citizens was not really new. Section 15131, subdivision (a) of the CEQA Guidelines states: “Economic or social effects of a project shall not be treated as significant effects on the environment. An EIR may trace a chain of cause and effect from a proposed decision on a project through anticipated economic or social changes resulting from the project to physical changes caused in turn by the economic or social changes. The intermediate economic or social changes need not be analyzed in any detail greater than necessary to trace the chain or cause and effect. The focus of the analysis shall be on the physical changes.” See also Guidelines section 15064, subdivision (e), to the same effect. Numerous other cases have applied these principles. See, e.g., Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151; Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433 (Mt. Shasta); City of Pasadena v. State of California (1993) 14 Cal.App.4th 810 (disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, at pp. 570 and 576, fns. 2 and 6); Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004. See also this court’s decision in Melom v. City of Madera (2010) 183 Cal.App.4th 41, 54-55 (discussing Bakersfield Citizens).
Section 15064, subdivision (e) of the Guidelines provides: “Economic and social changes resulting from a project shall not be treated as significant effects on the environment. Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant effect on the environment. Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine that the physical change is a significant effect on the environment. If the physical change causes adverse economic or social effects on people, those adverse effects may be used as a factor in determining whether the physical change is significant. For example, if a project would cause overcrowding of a public facility and the overcrowding causes an adverse effect on people, the overcrowding would be regarded as a significant effect.”
The original EIR in the present case included a 27-page treatment of the potential for urban decay resulting from the project, and concluded that the potential for the project to result in urban decay was less than significant. The trial court’s first (August 2008) ruling, finding the original EIR’s urban decay analysis to be legally deficient, faulted that analysis for not having explored the project’s potential for causing urban decay in geographic areas beyond the city limits of Clovis. That ruling was not appealed, so we need not address it further and we express no opinion on it. The City revised the EIR to include analysis of a larger geographic area in the urban decay analysis. The REIR once again concluded that the development of the shopping center project will not contribute to urban decay. The REIR relied on an updated “Economic Impact Analysis” complied by CBRE Consulting, Inc. (“the CBRE study”). The CBRE study, which is 47 pages in length (exclusive of another 37 pages of exhibits and appendices) contained exhaustive economic analysis of how the authors expect the opening of the stores in the new shopping center (the project) to effect other retailers within the (now larger) geographic area studied. The study concludes “it is expected” that the project “could result in diverted sales and that some closures of market area stores may occur” but that the project “will not contribute to urban decay.”
On this appeal SOCC contends that the EIR used a legally erroneous definition of “urban decay” and that the conclusion reached in the urban decay analysis is not supported by substantial evidence. As we shall explain, we disagree.
A. THE MEANING OF “URBAN DECAY”
The EIR defined “urban decay” as follows:
“[U]rban decay is defined as physical deterioration that is so prevalent and substantial it impairs the proper utilization of affected real estate or the health, safety and welfare of the surrounding community. Physical deterioration includes, but is not limited to, abnormally high business vacancies, abandoned buildings and commercial sites, boarded doors and windows, parked trucks and long term unauthorized use of properties and parking lots, extensive gang or offensive graffiti painted on buildings, dumping of refuse or overturned dumpsters on properties, dead trees or shrubbery and uncontrolled weed growth or homeless encampments.”
1. Appellant argues that the City’s use of this definition was an abuse of discretion because it defines urban decay “too narrowly” and because the City “never identified the threshold at which it deemed urban decay significant.” Although a number of cases have addressed the concept of “urban decay” in connection with CEQA analysis, we know of none that has attempted to define it. (See, e.g., Bakersfield Citizens, supra, 124 Cal.App.4th 1184; American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173 (Anderson); and Melom v. City of Madera, supra, 183 Cal.App.4th 41.) Nor do we see any compelling reason to attempt to do so here. We also observe that although appellant contends the definition used by the City in this case was erroneous, appellant does not present to us any proposed “correct” definition of the term. Nor does appellant argue that the term should remain undefined in an EIR. In Mt. Shasta, supra, 198 Cal.App.3d 433 the court did not use the term “urban decay” at all, but instead just spoke of possible “physical deterioration of the downtown area.” (Id. at p. 446.) We see nothing in the letter or spirit of CEQA which suggests that courts should tell a lead agency what terms to use to describe possible significant impacts of a project and how to define those terms. We acknowledge there might be circumstances in which an EIR’s definition of key term might be so at odds with the commonly understood meaning of that term that the analysis in the EIR is rendered so confusing or misleading as to defeat the EIR’s usefulness as an “‘informative document’” (Laurel Heights, supra, 47 Cal.3d at p. 392), but we do not see that in this case.
2. Appellant’s argument that the City never identified the threshold at which it would deem urban decay to be significant fails for at least two reasons. First, “[t]hresholds of significance to be adopted for general use as part of the lead agency’s environmental review process must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.” (Guidelines, § 15064.7, subd. (b).) Appellant makes no showing that there was any adopted threshold of significance to use. Presumably there was not. That is understandable. Urban decay is not something that can be measured quantitatively, as for example nitrogen oxide emissions or traffic flow. Second, although “qualitative” thresholds of significance may be adopted (see Guidelines, § 15064.7, subd. (a)), they are not required. (Ibid.) Notably, like appellant’s complaint about the City’s definition of urban decay, appellant again offers no suggestion as to what threshold of significance a city should adopt for an analysis of urban decay.
B. THE EIR’S CONCLUSION THAT THE PROJECT WILL NOT RESULT IN URBAN DECAY IS SUPPORTED BY SUBSTANTIAL EVIDENCE
A city’s determination in an EIR that a project will not result in urban decay is reviewed “in the light most favorable to the City’s conclusion to determine whether substantial evidence supports the conclusion that the impact of urban decay is less than significant.” (Anderson, supra, 130 Cal.App.4th at p. 1183.) “In the CEQA context, substantial evidence ‘means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ (Guidelines, § 15384, subd. (a).)” (Ibid.) Our review is not to determine whether the evidence demonstrates a possibility that urban decay will result from the project. (Ibid.) As we have previously stated, we may “not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable” and may “not... weigh conflicting evidence and determine who has the better argument ….” (Laurel Heights, supra, 47 Cal.3d at p. 393.)
The City’s determination easily survives this substantial evidence review. Perhaps the most compelling evidence supporting the City’s conclusion is that despite the fact that both parties agreed that the current commercial vacancy rate in the area already exceeded 10 percent, there appeared to be little or no evidence of physically deteriorating commercial properties in Clovis or in the CBRE study area, which exceeded beyond the Clovis border into neighboring Fresno. The administrative record contains pictures of some vacant commercial properties in Clovis. They appear to be remarkably well maintained. The CBRE report noted that the Clovis retail market is dominated by retailers along Shaw Avenue between Highway 168 and Armstrong Avenue and that these retailers comprise the majority of the city’s retail base. With regard to “the existing vacancies along Shaw Avenue, ” the CBRE study stated “the existing commercial centers do not bear the typical characteristics of property in decay. While some of the centers appear older and outdated, none were observed to have visible signs of neglect, abandonment, or poor maintenance. For example, there is no apparent graffiti, loitering is not evident, the parking lots are free of trash, and cars are not parked with for sale signs, all typical signs of declining property.”
The City was not required to find that the opening of one new shopping center would change this. A good portion of SOCC’s argument to the City and to the superior court focused on commercial vacancy rates, but as both the City and the superior court pointed out, a well-maintained, empty commercial space does not by itself constitute urban decay. See also Anderson noting that a business closure can have environmental effects that are beneficial or “benign, ” such as “reduced traffic into the affected area.” (Anderson, supra, 130 Cal.App.4th at p. 1186.) It is apparent from arguments presented in court, written comments submitted to the City during the public review period, and spoken comments presented to the City during its public hearings, that the economic consequences of the opening of a Walmart supercenter at the new shopping center was a major concern of many people. Potential competitors who faced a possible or likely loss of or reduction in their own business expressed that concern. But “CEQA is not a fair competition statutory scheme.” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1235.)
Although appellant argues forcefully that its view is the better view, that battle has been fought and lost. On the evidence presented to the City, we must defer to the City’s conclusion that urban decay will not result from the project. (Laurel Heights, supra, 47 Cal.3d 376.)
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
WE CONCUR: Levy, Acting P.J., Cornell, J.