Opinion
2d Civil No. B195430 2d Civil No. B197323
4-24-2008
SONDERMANN RING PARTNERS-VENTURA HARBOR, Plaintiff and Appellant, v. CITY OF SAN BUENAVENTURA, Defendant and Respondent.
Paul, Hastings, Janofsky & Walker, LLP, Robert I. McMurry, A. Catherine Norian for Plaintiff and Appellant. James E. Neuerburg, Assistant City Attorney; Lascher & Lascher, Wendy Lascher, Aris Karakalos for Defendant and Respondent.
NOT TO BE PUBLISHED
Appellant Sondermann Ring Partners-Ventura Harbor (Sondermann) filed a lawsuit challenging the environmental impact report (EIR) prepared by respondent City of San Buenaventura (City) for revision of its general plan. Sondermann argued the City violated the California Environmental Quality Act (CEQA) by failing to adopt a zoning code amendment. It also argued CEQA was violated because the City amended the EIR in response to public comments without recirculating the EIR for public review.
Sondermann filed a separate appeal of the courts denial of its request for attorney fees. Sondermann asserts it is entitled to attorney fees in the amount of $281,826 because it succeeded on one of its CEQA challenges. We affirm both rulings.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In 2004, Sondermann applied to the City to develop 300 apartments in the Ventura Harbor area of the City. In May 2005, while Sondermanns application was pending, the City released a draft of a proposed update for its general plan for public review, along with a draft EIR for the plan on June 1, 2005.
During the public comment period on the draft EIR, the Ventura Port District (District) commented that the City had failed to include in the plan 329,000 square feet of anticipated non-residential development in the harbor area. Sondermann concurred in the Districts comments. In response, the City revised the draft plan to include this area, but did not recirculate the EIR for public review.
After the City approved the EIR and adopted the updated general plan, Sondermann filed a petition for writ of mandate and complaint for injunctive relief against the City and members of the city council on September 7, 2005. The petition alleged five causes of action: Violation of CEQA, Public Resources Code sections 21000, et seq.; violation of the Planning and Zoning Law, Government Code sections 65000, et seq.; violation of the Brown Act, Government Code sections 54950 et seq.; takings claims under the United States and California Constitutions. The City filed a demurrer. The trial court sustained the Citys demurrer to all causes of action except those alleging violation of CEQA and the takings claim.
In July 2006, the court held a hearing on the CEQA and takings claims. The court rejected the takings claim. As to the alleged CEQA violation, Sondermann argued that Citys adoption of its 2005 general plan without simultaneous adoption of a new zoning ordinance violates CEQA. The court concluded that the City had no obligation to consider and adopt a new zoning code concurrently with its review and adoption of the general plan update.
The trial court agreed with Sondermann that "the EIR should have been revised and recirculated when the City allocated an additional 329,000 square feet of planned nonresidential development in the Harbor Area days before the Plan and EIR came to a vote." The court found, however, that the change to the harbor area density was severable from the other issues and that "the increased Harbor Area nonresidential density for further environmental review will not prejudice complete and full compliance with CEQA." On September 25, 2006, the trial court entered judgment ruling that the City complied with CEQA, and its general plan update was valid except as to the portion ordered severed for further review with a supplemental EIR.
Sondermann filed a motion for attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute, seeking $281,826 on the ground that it had succeeded on its claim that supplemental environmental review of the development in the harbor area was required. The trial court denied the motion, finding that Sondermann "was not a successful party because the relief obtained was minimal in comparison to the relief sought." The court also found Sondermanns investment in the litigation, in light of the relief sought, did not transcend its individual interest in promoting its own development project.
Sondermann appealed the CEQA rulings and, in a separate appeal, the order denying attorney fees. We consolidated the appeals.
DISCUSSION
I. Review and Approval of a General Plan Update without Concurrent Review and Approval of an Updated Zoning Code Does Not Violate CEQA
CEQA requires environmental review before a project is approved by a public agency. (Pub. Resources Code, § 21000 et seq.) CEQA defines "project" as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency." (Id., § 21065; Cal. Code Regs., tit. 14, § 15378, subd. (a). ) Adoption and amendment of general plans and zoning codes are projects subject to CEQA. (CEQA Guidelines, § 15378, subd. (a)(1).)
The administrative regulations adopted to implement CEQA (California Code of Regulations, title 14) will be referred to as "CEQA Guidelines."
A general plan is a comprehensive, long-term general plan for the physical development of the county or city. (Gov. Code, § 65300.) It provides a "charter for future development" and sets forth a city or countys fundamental policy decisions about such development. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1194.)
Zoning divides the city into zones where specific uses are permitted, such as residential, commercial, industrial and agricultural.
CEQA Guidelines section 15378, subdivision (a)(1) states: "An activity directly undertaken by any public agency including but not limited to . . . enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700."
Sondermanns principal argument is that the City violated CEQA because the EIR it approved for its general plan update did not include review of a yet-to-be-adopted zoning code amendment. It asserts that reviewing only the environmental effects of the general plan update without a concurrent review of amended zoning regulations to conform to the general plan resulted in a "truncated" project description in violation of CEQAs mandate that the "whole of an action" be reviewed. The question of which acts constitute the "whole of an action" for purposes of CEQA is one of law which we review de novo. (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1224.)
Sondermann cites numerous cases for the well-established rule that a public agency may not divide a single project into smaller individual subprojects to avoid responsibility for considering the environmental impact of the project as a whole. (Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171; see also Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 638 [CEQA ""cannot be avoided by chopping up proposed projects into bite-sized pieces" which, when taken individually, may have no significant adverse effect on the environment"].) Sondermann argues that conducting environmental review of the updated general plan without simultaneous review of updated zoning regulations constitutes prohibited "piecemealing" of the project.
Sondermanns argument relies on cases that are not relevant. They all involve environmental review and approval of specific development projects, not adoption of general plans or zoning regulations. Sondermann cites, for example, Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, a case involving development of a university research facility. In that case our Supreme Court concluded that the EIR prepared for the project was defective because it did not assess the projects reasonably foreseeable impacts thereby improperly segmenting the projects environmental review. The court set forth the test for determining whether the project being reviewed constitutes the whole of an action: "We hold that an EIR must include an analysis of the environmental effects of future expansion . . . if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects." (Id. at p. 396.) Sondermann has not cited, and we have not found, any case or other authority applying this test to projects other than those involving specific developments.
An additional flaw in Sondermanns argument is that it conflicts with express provisions of the Planning and Zoning Law. Government Code section 65802 states: "No provisions of this code, other than the provisions of this chapter, and no provisions of any other code or statute shall restrict or limit the procedures provided in this chapter by which the legislative body of any county or city enacts, amends, administers, or provides for the administration of any zoning law, ordinance, rule or regulation." Government Code section 65860, subdivision (c) states: "In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to the plan, or to any element of the plan, the zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended." (Italics added.) In Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21, 29, the court said that section 65860 was a legislative recognition "that amending zoning ordinances to make them consistent with a general plan would take time." These statutes prohibit CEQA from being used to limit a public agencys discretion to determine how and when to adopt or amend its zoning code.
The most serious flaw in Sondermanns argument is that a court has no authority to compel a public agency to enact legislation. To do so would violate one of the most basic principles of our Constitution, the separation of powers doctrine. In Mandel v. Myers (1981) 29 Cal.3d 531, 551, footnote 9, our Supreme Court said: "[B]y virtue of the separation of powers doctrine courts lack the power to order the Legislature to pass a prescribed legislative act." Respect for this fundamental constitutional principle has given rise to the rule that "[mandamus] will not lie to compel a legislative body to perform legislative acts in a particular manner." (Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 624, and cases cited; see also Banville v. County of Los Angeles (1960) 180 Cal.App.2d 563, 570 ["Under our law the legislative body cannot be forced to enact or amend a zoning ordinance. The courts can declare an action of the Legislature unconstitutional where such action exceeds the limits of the Constitution, but the courts have no means and no power to avoid the effects of non-action"]; and see Tandy v. City of Oakland (1962) 208 Cal.App.2d 609 [the courts do not have the power to issue a writ to compel a city council to rezone particular property from residential to commercial as this would be a legislative act].)
The power of a court to interfere with a public agencys zoning and planning decisions arises only where a statute clearly defines the specific duties and the course of conduct the governing body must take, so that the course of conduct becomes mandatory and eliminates any element of discretion. (See, e.g., Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 83 ["where a statute requires an officer to do a prescribed act upon a prescribed contingency, his functions are ministerial, and upon the happening of the contingency the writ may be issued to control his action"].)
An example of a statute imposing a mandatory duty is Government Code section 65860, which requires a public agency to amend its zoning regulations to make them consistent with its general plan and authorizes a resident or property owner to bring an action to enforce compliance. (§ 65860, subds. (b) & (c).) This statute, however, does not give a property owner the right or a court the authority to impose mandates as to how or when a public agency may amend its zoning regulations. (See, e.g., Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1192 ["A reviewing courts role "is simply to decide whether the [agency] officials considered the applicable policies and the extent to which the proposed project conforms with those policies""]; and see Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 713-714 [enactment of a zoning ordinance as well as the vacating of such enactment are purely legislative acts; thus, property owners seeking to rescind a rezoning amendment to a county zoning ordinance could not allege that it was the ministerial duty of the county to rescind the ordinance].)
Sondermanns argument that reviewing and approving a general plan amendment without simultaneous review and approval of zoning amendments constitutes "piecemealing" a project is without merit as a matter of law.
As the parties briefs did not discuss the Planning and Zoning Law statutes or the separation of powers doctrine, we asked for supplemental briefing of these issues at oral argument. We have read and considered the parties supplemental briefs.
II. The EIRs Discussion of Build-out Alternatives Was Adequate
Sondermann asserts the EIR does not comply with CEQA because it does not analyze impacts of full build-out under the updated general plan, "but instead analyzed a different project based on an unfounded assumption that . . . the maximum development of non-residential uses permitted . . . would be limited to a reasonable worse case." In rejecting this contention, the trial court stated: "Given the 20-year lifespan of the General Plan, and the statutory, political and geographical realities enumerated therein, substantial evidence supports the propriety of the growth rates utilized in the Plan and analyzed in the EIR."
We review the adequacy of an environmental impact for substantial evidence. (Pub. Resources Code, § 21168; Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 259-260.) We do not pass upon the correctness of the EIRs environmental conclusions but only upon its sufficiency as an environmental document. We may not set aside an agencys approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) We may not reconsider or reevaluate the evidence presented to the administrative agency. All conflicts in the evidence and any reasonable doubts must be resolved in favor of the agencys findings and decision. (Ibid.)
"`The EIR is an informational document with the stated purpose of providing public agencies and the public with "detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." [Citations.] . . . An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. . . . An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. . . ." (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 368; CEQA Guidelines, § 15151; Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 862.) "Technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure." (Rio Vista Farm Bureau Center, at p. 368.)
The discussion of alternatives is governed by a rule of reason. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d 553.) The analysis need not contain every conceivable scenario. (Towards Responsibility In Planning v. City Council (1988) 200 Cal.App.3d 671.) The EIR discusses six projected growth scenarios through 2025. The scenarios range from a potential growth of non-residential development between 4,890,724 and 6,330,484 square feet of development. Sondermann argues these projected growth scenarios are inadequate because "the City actually believes that the 2005 General Plan could permit up to 57,869,859 [square feet] of non-residential development—approximately ten times the amount of growth analyzed in the EIR."
Sondermanns argument fails to acknowledge that this figure appears in a chart entitled "Development Projections Based on the So-Called Carrying Capacity of All the Land in Ventura." This is a hypothetical projection of what could occur if every available square inch of land were developed over the next century. The updated general plan analyzes growth potential over the 20-year life of the plan. "[A]n EIR is not required to engage in speculation in order to analyze a worst case scenario." (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 373; see also Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1028 ["there are literally thousands of reasonable alternatives to the proposed project"].) Here, as in Village Laguna, "It is significant that no claims of deficiencies are made concerning the discussions of the [six] alternatives that were considered in the EIR. Therefore, it must be assumed that decision-makers and the public could make an informed comparison of the environmental effects of those various plans. It is not then unreasonable to conclude that an alternative not discussed in the EIR could be intelligently considered by studying the adequate descriptions of the plans that are discussed. [Fn. omitted.] This EIR should not become vulnerable because it fails to consider in detail each and every conceivable variation of the alternatives stated." (Id. at p. 1029.) The trial court did not abuse its discretion in finding the discussion of alternatives to be adequate.
III. The Trial Court Did Not Abuse Its Discretion in Severing a Portion of the Project and Remanding for Supplemental Environmental Review
The trial court found that the only violation of CEQA occurred when the City did not recirculate the EIR for public comment after it added the 329,000 square feet of non-residential development in the harbor area. The court severed this portion of the EIR of its order and remanded to the City to prepare a supplemental EIR.
Sondermann argues that severance was not permitted because the impact of this potential development cannot be considered in a vacuum without considering the impact that such development would have on traffic volumes and on the balance of non-residential development in other areas of Ventura. We disagree.
CEQA requires a trial court to sever a portion of a project that it finds does not comply with CEQA if it 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." (Pub. Resources Code, § 21168.9, subd. (b).)
The harbor area is a relatively small, discrete portion of the City, governed by the District, not the City. In these circumstances, severance is permitted. (See, e.g., San Bernardino Valley Audubon Soc. v. Metropolitan Water Dist. (2001) 89 Cal.App.4th 1097, 1104-1105 ["The 1993 amendments to section 21168.9 expanded the trial courts authority and expressly authorized the court to fashion a remedy that permits some part of the project to go forward while an agency seeks to remedy its CEQA violations. In other words, the issuance of a writ need not always halt all work on a project"].) The trial court made the findings required for severance and remanded to the City for compliance with its order. Nothing more was required.
IV. The Trial Court Did Not Err in Denying Sondermanns Attorney Fee Request
Code of Civil Procedure section 1021.5 permits an award of attorney fees to a prevailing party where the trial court finds that the litigation "(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter." (Baggett v. Gates (1982) 32 Cal.3d 128, 142.)
Entitlement to attorney fees under Code of Civil Procedure section 1021.5 is reviewed de novo because the question is one of statutory construction. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) Where the statutory criteria of section 1021.5 are met, the trial court has limited authority to deny a fee award. (Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1344.) A party who meets the statutory criteria should receive a fee award unless special circumstances make such an award unjust. (Ibid.)
Sondermann contends it met the statutory criteria for an award of attorney fees and that the trial court erred in denying fees because it found "the relief obtained was minimal in comparison with the relief sought." Sondermann asserts the trial court "interpreted Section 1021.5 as including an additional criterion for a fee award, requiring that a successful party obtain relief that satisfies some measure of adequacy in comparison to the relief initially sought." We disagree.
Sondermann argues that when a plaintiff is successful within the meaning of the statute, the fact that he or she has prevailed on some claims but not others is a factor to be considered only in determining the amount of the fee awarded. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) This argument puts the cart before the horse. To determine whether a party was successful, the court first must examine the partys goals and what it hoped to accomplish in filing the lawsuit. (See, e.g., Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178 [partial success may be sufficient to sustain an award of attorney fees if there is success on a significant issue that achieves some of the benefit the party sought].)
Sondermanns acknowledged purpose in filing this action was to obtain approval of its apartment project. Sondermann prevailed on only one of its CEQA claims. Its lawsuit was a catalyst in requiring the City to prepare a supplemental EIR examining the effects of an additional 329,000 square feet of non-residential development in the harbor area. Sondermann has not established how its success in requiring the City to provide additional information on the impacts that would result from non-residential development in the harbor area furthered its goal of obtaining approval of 300 residential units. As Sondermann has failed to establish that it is a successful party under Code of Civil Procedure section 1021.5, a further discussion of section 1021.5s criteria is unnecessary.
We affirm the judgment and order denying attorney fees. Respondent is to recover costs on appeal.
We concur:
GILBERT, P.J.
YEGAN, J.