Summary
In Stop Syar, a petitioner argued that an EIR failed to address a project's alleged inconsistencies with the county's general plan.
Summary of this case from Johnson v. City of LynwoodOpinion
A158723
03-25-2021
STOP SYAR EXPANSION, Plaintiff and Appellant, v. COUNTY OF NAPA, Defendant and Respondent; Syar Industries, Inc., Real Party in Interest and Respondent.
Chatten-Brown, Carstens & Minteer LLP, Amy C. Minteer, Santa Monica, Michelle N. Black, Hermosa Beach, and Sunjana Supekar for Petitioner and Appellant. Napa County Counsel, Jeffrey M. Brax, Laura J. Anderson, Sonoma, and Christopher Y. Apallas for Respondent County of Napa. Baker Botts LLP, Christopher J. Carr and Navtej S. Dhillon for Respondent and Real Parties in Interest Syar Industries Inc.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1120 and 8.1105(b), the opinion in the above-entitled matter is ordered certified for publication, with the exception of parts II(C)-(H), in the Official Reports.
Chatten-Brown, Carstens & Minteer LLP, Amy C. Minteer, Santa Monica, Michelle N. Black, Hermosa Beach, and Sunjana Supekar for Petitioner and Appellant.
Napa County Counsel, Jeffrey M. Brax, Laura J. Anderson, Sonoma, and Christopher Y. Apallas for Respondent County of Napa.
Baker Botts LLP, Christopher J. Carr and Navtej S. Dhillon for Respondent and Real Parties in Interest Syar Industries Inc.
Banke, J.
I. INTRODUCTION
Stop Syar Expansion (SSE) has long opposed the expansion of Syar Industries, Inc.’s (Syar) aggregate operation. Syar filed an application for expansion in May 2008. After more than seven years of environmental review and numerous hearings, the County Planning Commission, in October 2015, certified the final Environmental Impact Report (EIR) and approved a modified project and a permit for an expansion half the size originally sought and subject to more than 100 pages of conditions and mitigation measures. SSE appealed both the EIR certification and the project and permit approvals to the County Board of Supervisions, asserting in the respective appeals that the EIR and the project and permit approvals were deficient in a multitude of respects. After nearly a year of additional environmental review and hearings, the Board, in a 109-page decision, rejected SSE's appeals, certified the EIR, and approved a further modified project and permit. SSE filed the instant writ proceeding pursuant to Public Resources Code, section 21168, challenging the certification of the EIR. It ultimately winnowed down its claims with respect to the EIR to 16 asserted deficiencies. After briefing by the parties and a hearing, the trial court, in a 42-page ruling, denied the writ petition on a variety of grounds, reaching the merits as to some issues and concluding SSE failed to exhaust administrative remedies as to others.
All further statutory references are to the Public Resources Code unless otherwise indicated.
SSE appeals and, at this juncture, contends the EIR is deficient in five respects. We affirm.
We discuss the pertinent facts and any relevant procedural history in connection with our discussion of the issues raised on appeal.
A. Basic CEQA Principles and Standard of Review
In South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 329–330, 245 Cal.Rptr.3d 174 ( South of Market ), we summarized the relevant CEQA principles and standard of review in a case like this one, where the petitioner's appeal "primarily challenges the content and analysis of the EIR." ( Id. at p. 329, 245 Cal.Rptr.3d 174.)
As we explained, the " ‘basic purpose of an EIR is to "provide public agencies and the public in general with detailed information about the effect [that] 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." ’ ( Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511 [241 Cal.Rptr.3d 508, 431 P.3d 1151] ... ( Sierra Club ).) ‘ " ‘The EIR is the heart of CEQA’ and the integrity of the process is dependent on the adequacy of the EIR." ’ ( Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924 ....)" ( South of Market, supra, 33 Cal.App.5th at p. 329, 245 Cal.Rptr.3d 174.)
" ‘ " ‘ "[A]n EIR is presumed adequate ( Pub. Resources Code, § 21167.3 ), and the plaintiff in a CEQA action has the burden of proving otherwise." ’ " ’ ( Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275 ....)" ( South of Market, supra, 33 Cal.App.5th at p. 329, 245 Cal.Rptr.3d 174.)
"As our Supreme Court recently explained in Sierra Club : ‘The standard of review in a CEQA case, as provided in sections 21168.5 and 21005, is abuse of discretion. Section 21168.5 states in part: "In any action or proceeding ... to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion." [Citation.] Our decisions have thus articulated a procedural issues/factual issues dichotomy. "[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. In reviewing for substantial evidence, the reviewing 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,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ " ’ ( Sierra Club, supra , 6 Cal.5th at p. 512 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at pp. 329–330, 245 Cal.Rptr.3d 174.)
"The court explained that this ‘procedural issues/factual issues dichotomy’ has worked well for courts reviewing agency determinations. ( Sierra Club, supra , 6 Cal.5th at p. 512 [241 Cal.Rptr.3d 508, 431 P.3d 1151].) Some procedural questions, such as whether the agency has provided sufficient notice and opportunity to comment on a [draft EIR], or whether it has entirely omitted a required discussion, have clear answers. ‘But the question whether an agency has followed proper procedures is not always so clear. This is especially so when the issue is whether an EIR's discussion of environmental impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating "informed agency decisionmaking and informed public participation." ’ ( Id . at pp. 512–513 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at p. 330, 245 Cal.Rptr.3d 174.)
"After reviewing several of its own decisions and those of the Court of Appeal, the court summarized three ‘basic principles’ regarding the standard of review for adequacy of an EIR: ‘(1) An agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR. (2) However, a reviewing court must determine whether the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether the EIR comports with its intended function of including " ‘ "detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." ’ " [Citation.] (3) The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency's factual conclusions.’ ( Sierra Club, supra , 6 Cal.5th at pp. 515–516 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at p. 330, 245 Cal.Rptr.3d 174.)
" ‘The ultimate inquiry, as case law and the CEQA guidelines make clear, is whether the EIR includes enough detail "to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." ’ ( Sierra Club, supra , 6 Cal.5th at p. 516 [241 Cal.Rptr.3d 508, 431 P.3d 1151].) Generally, that inquiry is a mixed question of law and fact subject to de novo review, but to the extent factual questions (such as the agency's decision which methodologies to employ for analyzing an environmental effect) predominate, a substantial evidence standard of review will apply. ( Ibid . )" ( South of Market, supra, 33 Cal.App.5th at pp. 330–331, 245 Cal.Rptr.3d 174, fn. omitted.)
"Further, ‘ "[i]n determining the adequacy of an EIR, the CEQA Guidelines look to whether the report provides decision makers with sufficient analysis to intelligently consider the environmental consequences of a project. ([Guidelines,] § 15151.) The CEQA Guidelines further provide that ‘the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have [therefore] looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.’ ([Guidelines,] § 15151.)" [Citation.] The overriding issue on review is thus "whether the [lead agency] reasonably and in good faith discussed [a project] in detail sufficient [to enable] the public [to] discern from the [EIR] the ‘analytic route the ... agency traveled from evidence to action.’ " ’ ( California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 262 ... ( California Oak Foundation ); see Sierra Club, supra , 6 Cal.5th at p. 515 [241 Cal.Rptr.3d 508, 431 P.3d 1151] [‘We also affirm that in reviewing an EIR's discussion, we do not require technical perfection or scientific certainty....’].)" ( South of Market, supra, 33 Cal.App.5th at p. 331, 245 Cal.Rptr.3d 174.)
" ‘Although an agency's failure to disclose information called for by CEQA may be prejudicial "regardless of whether a different outcome would have resulted if the public agency had complied" with the law (§ 21005, subd. (a)), under CEQA, "there is no presumption that error is prejudicial" (§ 21005, subd. (b)). Insubstantial or merely technical omissions are not grounds for relief. [Citation.] "A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." ’ ( Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463 [160 Cal.Rptr.3d 1, 304 P.3d 499] ...; see id . at pp. 464–465 [160 Cal.Rptr.3d 1, 304 P.3d 499] [failure to comply with CEQA's informational mandate ‘did not deprive agency decision makers or the public of substantial information relevant to approving the project, and is therefore not a ground for setting that decision aside’].)" ( South of Market, supra, 33 Cal.App.5th at p. 331, 245 Cal.Rptr.3d 174.) B. General CEQA Exhaustion Principles
The requirement that administrative remedies be exhausted "is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court, and the issue is within its special jurisdiction. If a court allows a suit to go forward prior to a final administrative determination, it will be interfering with the subject matter of another tribunal." ( Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589, 96 Cal.Rptr.2d 880 ( Tahoe Vista ).)
In the context of CEQA, specifically, " ‘ "The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review." ’ [Citations.] Comments must express concerns so the lead agency has ‘ " ‘ "its opportunity to act and to render litigation unnecessary." ’ " ’ [Citation.]." ( North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623, 157 Cal.Rptr.3d 240 ( North Coast Rivers ).)
Thus, "the requirement of exhaustion is a jurisdictional prerequisite, and not a matter of judicial discretion." ( Tahoe Vista, supra, 81 Cal.App.4th at p. 589, 96 Cal.Rptr.2d 880 ; accord, Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 184, 227 Cal.Rptr.3d 413 ( Clews Land ); North Coast Rivers, supra, 216 Cal.App.4th at p. 624, 157 Cal.Rptr.3d 240.)
"Inasmuch as the issue of exhaustion is a question of law, ‘[a]n appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies.’ " ( North Coast Rivers, supra, 216 Cal.App.4th at p. 624, 157 Cal.Rptr.3d 240 ; accord, Clews Land, supra, 19 Cal.App.5th at p. 185, 227 Cal.Rptr.3d 413.)
" ‘The purposes of the doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them.’ [Citation.] ‘ " ‘[Thus,] [r]elatively ... bland and general references to environmental matters’ ..., or ‘isolated and unelaborated comment[s]’ " ’ do not satisfy the exhaustion requirement. [Citation.] Rather, ‘ "[t]he ‘exact issue’ must have been presented to the administrative agency...." ’ [Citation.] Requiring anything less ‘would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court.’ [Citation.]." ( North Coast, supra, 216 Cal.App.4th at p. 623, 157 Cal.Rptr.3d 240 ; accord, South of Market, supra, 33 Cal.App.5th at p. 347, 245 Cal.Rptr.3d 174 ; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535, 78 Cal.Rptr.3d 1 ["To advance the exhaustion doctrine's purpose ‘[t]he "exact issue" must have been presented to the administrative agency....’ "].)
This does not mean an objector must be as specific as an attorney making an objection in a lawsuit. (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 629, 91 Cal.Rptr.3d 571 ["To satisfy the exhaustion requirement, objections a party seeks to raise in a CEQA action must have been made ‘known in some fashion, however unsophisticated[, in the administrative proceeding].’ "].) Nonetheless, the objection must fairly apprise the agency of the substance of the objection so that it has an opportunity to evaluate and respond to it. (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 251, 103 Cal.Rptr.3d 124 ["To satisfy the exhaustion doctrine, the objections must ‘fairly apprise[ ]’ the agency of the purported defect in the EIR."].)
In the instant case, because the County, by ordinance (Napa County Code, ch. 288), provides for an appeal of actions by the Planning Commission to the County Board of Supervisors, the exhaustion analysis entails a dual inquiry.
Tahoe Vista guides this analysis, as the court therein addressed what was then an issue of first impression—"whether a party who raises an issue in the first hearing provided on a project but fails to raise that same issue in an administrative appeal remains free to raise that issue in a subsequent court challenge under section 21177." ( Tahoe Vista, supra, 81 Cal.App.4th at p. 589, 96 Cal.Rptr.2d 880.) Following an extensive discussion of both section 21177 and the exhaustion doctrine, the court concluded "section 21177 and the exhaustion doctrine prevent such an issue from being raised in a court action." ( Tahoe Vista, at pp. 589–592, 96 Cal.Rptr.2d 880.)
Section 21177 provides in pertinent part: "(a) An action or proceeding shall not be brought ... unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or before the close of the public hearing on the project before the issuance of the notice of determination. (b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period ... or before the close of the public hearing on the project...." (§ 21177, subds. (a)-(b).)
The court pointed out, "[s]ection 14.5 of chapter 1514 of the Statutes of 1984, the measure by which section 21177 was enacted, ‘states that the "intent of the Legislature in adding Section 21177 ... [is] to codify the exhaustion of administrative remedies doctrine." (Stats.1984, ch. 1514, § 14.5, p. 5345; italics added.) It further provides that "it is not the intent [of the legislation] to limit or modify any exception to the doctrine of administrative remedies contained in case law." (Ibid., italics added.) "We are thus directed to read [section 21177] with reference to a specific common law rule." (Cantor v. Anderson (1981) 126 Cal.App.3d 124, 129, 178 Cal.Rptr. 540 ..., citations omitted.) That rule has to do with the law of administrative remedies as it preceded the enactment of section 21177.’ (California Aviation Council [v. County of Amador (1988)] 200 Cal.App.3d [337, 346, 246 Cal.Rptr. 110 ] (conc. opn. of Blease, J.).)" (Tahoe Vista, supra, 81 Cal.App.4th at pp. 589–590, 96 Cal.Rptr.2d 880.)
In Tahoe Vista, it was undisputed that the "plaintiffs raised their objection to the negative declaration ‘during the public comment period’ or ‘prior to the close of the [Planning Commission's] public hearing on the project before the issuance of the notice of determination.’ (§ 21177, subd. (a).)" ( Tahoe Vista, supra, 81 Cal.App.4th at p. 591, 96 Cal.Rptr.2d 880.) "Plaintiffs thus had standing to file their petition in the trial court and to prosecute their claim under CEQA provided they otherwise exhausted all administrative remedies available to them once the Planning Commission committed what plaintiffs believed was a wrongful act." ( Tahoe Vista , at p. 591, 96 Cal.Rptr.2d 880.)
The court also explained why the dual requirements of section 21177—that (a) the plaintiff have participated in the administrative proceedings prior to the issuance of a notice of determination and (b) the specific issue the plaintiff later raises in a court challenge was raised by someone during those proceedings—are more accurately characterized as establishing "standing" to sue, rather than requiring exhaustion of administrative remedies. (Tahoe Vista, supra, 81 Cal.App.4th at pp. 589–590, 96 Cal.Rptr.2d 880 ; see Clews Land, supra, 19 Cal.App.5th at p. 184, fn. 3, 227 Cal.Rptr.3d 413 [also stating dual requirements of § 21177 are "separate from" the operation of the exhaustion doctrine where there are "available administrative procedures to challenge" the public agency's decision concerning an EIR; the "exhaustion doctrine is separate from, and in addition to, the [statutory] requirements under CEQA"].)
The appellate court then turned to the principal issue—whether the plaintiffs had exhausted their administrative remedies with respect to the issues they sought to raise in their court action. The court explained that " ‘[c]onsideration of whether such exhaustion has occurred in a given case will depend upon the procedures applicable to the public agency in question.’ ( City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 969 ...; see also Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1450 ... [failure to appeal planning commission's actions ‘in the manner prescribed by the town code’ constituted failure to exhaust administrative remedies]; Browning–Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 860 ....)" ( Tahoe Vista, supra, 81 Cal.App.4th at pp. 591–592, 96 Cal.Rptr.2d 880.)
In Tahoe Vista, those procedures were provided by section 25.140 of the Placer County Code, which "allows persons who appear at a Planning Commission hearing to appeal the Planning Commission's decision to the Board of Supervisors. The County Code describes the scope of the appeal hearing as follows: ‘At the hearing (a hearing conducted "over again"), the appellate body shall initiate a discussion limited to only those issues that are the specific subject of the appeal, and, in addition, the specific grounds for the appeal. [For example, if the permit for a project approval or denial has been appealed, the entire project will be the subject of the appeal hearing; however, if a condition of approval has been appealed, then only the condition and issues directly related to the subject of that condition will be allowed as part of the discussion by the appellate body.]’ (Placer County Code, § 25.140, subd. D.4.a., italics in original.)" ( Tahoe Vista, supra, 81 Cal.App.4th at p. 592, 96 Cal.Rptr.2d 880, first italics added.) "These procedures thus provided plaintiffs with an appeal from the Planning Commission's decision, but required plaintiffs to specify the particular subject or grounds of the appeal. Although the Board of Supervisors would consider the matter ‘over again,’ or in legal parlance, de novo, its review was limited solely to those issues the plaintiffs placed before it." ( Tahoe Vista, supra, 81 Cal.App.4th at p. 592, 96 Cal.Rptr.2d 880.) The plaintiffs’ appeal, however, had placed "only the conditional use permit before the Board of Supervisors and only with regard to parking." ( Ibid. ) The court pointed out the appeal form had "provided a specific notation by which [the] plaintiffs could have appealed the Planning Commission's approval of the negative declaration," but they "did not specify they were appealing the Planning Commission's decision on that point." ( Ibid. ) Such failure "to raise an issue in an administrative appeal after raising the issue in the first public or administrative hearing," said the court, constituted "a failure to exhaust administrative remedies and prevent[ed] the issue from being raised in a subsequent judicial action." ( Ibid. ; see Clews Land, supra, 19 Cal.App.5th at pp. 185–187, 227 Cal.Rptr.3d 413 [where municipal code provided a bifurcated appeals procedure, one applicable to environmental determinations and the other to other kinds of land use decisions, and petitioner did not comply with the former, it "did not exhaust its administrative remedies regarding the [mitigated negative declaration], and it may not now bring a judicial action challenging it"].)
Thus, as Tahoe Vista and other cases explain, SSE must first demonstrate that it meets the requirements of section 21177—that is, that it participated in the Planning Commission hearings " ‘before the issuance of the notice of determination’ " and that either it, or another objector appearing during those proceedings, raised the issues SSE has raised in this court action. ( Tahoe Vista, supra, 81 Cal.App.4th at p. 591, 96 Cal.Rptr.2d 880 ; Clews Land, supra, 19 Cal.App.5th at p. 184, fn. 3, 227 Cal.Rptr.3d 413.)
Because the County provides for an appeal of actions by the Planning Commission to the Board of Supervisors, SSE must secondly demonstrate that it exhausted this administrative remedy. ( Clews Land, supra, 19 Cal.App.5th at pp. 184–187, 227 Cal.Rptr.3d 413 ; Tahoe Vista, supra, 81 Cal.App.4th at pp. 591–592, 96 Cal.Rptr.2d 880.) And to determine whether SSE did so, we must look to the County's appeal procedures. ( Clews Land, at p. 185, 227 Cal.Rptr.3d 413 ; Tahoe Vista, at pp. 591–592, 96 Cal.Rptr.2d 880.)
These procedures are set forth in chapter 2.88 of the Napa County Code of Ordinances. An appeal is commenced by filing a "notice of intent to appeal" and paying the required fees "within ten working days of the decision of the approving authority." (Napa County Code. § 2.88.040, subd. (A).) Within "ten working days following the submittal of a notice of intent to appeal," the appellant must submit an "appeal packet." (Id. , § 2.88.050, subd. (A).) This packet must, among other things, include "[i]dentification of the specific factual or legal determination of the approving authority which is being appealed, and the basis for such appeal." (Id. , § 2.88.050, subd. (A)(4).) "Any issue not raised by the appellant in the appeal packet shall be deemed waived." (Ibid. ) "If the basis of the appeal is, in whole or in part, an allegation of prejudicial abuse of discretion on the part of the approving authority, that there was a lack of a fair and impartial hearing, or that there were no facts presented to the approving authority to support the decision, such grounds of appeal and the factual or legal basis for such grounds must be expressly stated or the board shall deem such bases and grounds for appeal waived by the appellant." (Id. , § 2.88.050, subd. (A)(5).)
In accordance with these provisions, the Board of Supervisor's 109-page decision separately identified and addressed each "ground" SSE listed in its "Grounds of Appeal" set forth in its appeals packets; indeed, in many instances the Board extensively quoted from SSE's stated grounds to set forth the ground raised, which the Board then addressed. In fact, the Board's decision separately identified and addressed the grounds SSE raised in its first appeal from the Planning Commission's certification of the EIR, and those it raised in its second appeal from the Commission's approval of the project and permit. The Board addressed no other grounds.
Thus, like the appeal process at issue in Tahoe Vista, the County's procedures provided SSE "with an appeal from the Planning Commission's decision, but required [that SSE] to specify the particular subject or grounds of the appeal." ( Tahoe Vista, supra, 81 Cal.App.4th at p. 592, 96 Cal.Rptr.2d 880.) And while the Board of Supervisors will "exercise its independent judgment in determining whether the decision appealed was correct" (Napa County Code, § 2.88.090, subd. (A)), an appeal is bounded by the grounds of appeal set forth in the appeal packet (id. , § 2.88.050(A)(4), (5)). (See Tahoe Vista, supra, 81 Cal.App.4th at pp. 592–593, 96 Cal.Rptr.2d 880.)
Accordingly, to demonstrate that it exhausted its administrative remedies, SSE must show that it timely filed a notice of intent to appeal and timely submitted an appeal packet which specifically identified the grounds it raises in this court action.
Citing to Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 50 Cal.Rptr.3d 636 ( Citizens ), SSE maintains Tahoe Vista is not controlling and it was not required to exhaust the administrative remedy set forth in the County's appeal ordinance. Citizens was decided by the same court that decided Tahoe Vista. The court did not repudiate its prior decision, but rather, distinguished it. In Citizens, the city issued a notice of preparation of a draft EIR and the objecting group appeared at the planning commission meeting and asserted the draft was deficient in a number of respects. ( Citizens, supra, 144 Cal.App.4th at p. 869, 50 Cal.Rptr.3d 636.) A second objecting group raised similar, but not identical issues. ( Ibid. ) The commission subsequently certified the EIR and approved a permit and tentative map. ( Id. at p. 870, 50 Cal.Rptr.3d 636.) The city code provided for an appeal to the city council, which had to be filed within five days of the commission's decision. ( Ibid . ) There was no requirement that issues be specified; rather, the city gave notice that any person could appear and " ‘present their views and comments’ " on the development project. ( Id. at p. 871, 50 Cal.Rptr.3d 636.) The city further advised that any challenge in court, might be " ‘limited to raising only those issues you or someone else raised’ " at the city council hearing or in correspondence delivered to the city clerk before the council meeting. ( Ibid. ) Only the second objecting group filed an appeal from the commission to the city council. But both groups appeared at the city council meeting, and the first objecting group raised the mitigation issue it subsequently raised in its writ proceeding. ( Id. at pp. 870–871, 50 Cal.Rptr.3d 636.) The trial court dismissed the writ petition for failure to exhaust administrative remedies on the ground the first objecting group had not filed its own appeal to the city council. The Court of Appeal reversed. ( Id. at p. 872, 50 Cal.Rptr.3d 636.)
Observing that the only issue before it was whether the first objecting group had exhausted its administrative remedies, the appellate court, as it had in Tahoe Vista, examined "the procedures applicable to the public agency in question." ( Citizens, supra, 144 Cal.App.4th at p. 876, 50 Cal.Rptr.3d 636.) The court pointed out the city's appeal procedure differed from that at issue in Tahoe Vista in several significant respects. The city did not require a specification of issues, nor did it require each objector to file its own appeal. On the contrary, the city council treated the second objectors’ appeal as opening the entire environmental review process to anyone who wanted to voice any concern. ( Id. at p. 877, 50 Cal.Rptr.3d 636.) Indeed, the city essentially advised "that any person participating in the [council] hearing could subsequently challenge the matter in court limited only by the issues raised at the hearing." ( Ibid. ) Thus, rather than being a true " ‘appeal,’ " the city's procedures "in reality" simply "transfer[red] ... the final decision-making authority from the planning commission to the city council." ( Ibid. )
SSE points out the Citizens court first "note[s]" that if a nonelected body certifies an EIR, the public entity must, pursuant to section 21151, provide for an appeal to the elected decision making body, and under CEQA Guidelines, a final EIR must reflect the " ‘lead agency's [i.e., the final decision making body's] independent judgment and analysis.’ " (Citizens, supra, 144 Cal.App.4th at p. 876, 50 Cal.Rptr.3d 636, italics omitted.) In Citizens then, the city council was the " ‘final decision-making body’ " that exercised the " ‘lead agency's independent judgment and analysis.’ " (Italics omitted.) Thus, the city council was not acting in a "traditional" appellate sense. (Ibid. ) The court did not suggest, however, as SSE implies, that this was determinative of exhaustion. On the contrary, it was against this statutory backdrop, that the court went on to discuss the city's appeal procedures and to conclude they were, in significant respects, unlike those in Tahoe Vista. (Id. at pp. 876–877, 50 Cal.Rptr.3d 636.) Indeed, in Tahoe Vista, the court had pointed out that while the board of supervisors heard issues on appeal de novo and was also required to adopt all findings necessary to implement approval of the project, including re-adopting a negative declaration, this did not mean the challengers did not have to follow the county's appellate procedures. (Tahoe Vista, supra, 81 Cal.App.4th at p. 593, 96 Cal.Rptr.2d 880 ; see Clews Land, supra, 19 Cal.App.5th at pp. 187–188, 227 Cal.Rptr.3d 413 [where environmental decision is delegated to nonelected body, which CEQA allows, agency must provide appeal process and challenger must comply with that process to pursue judicial challenge].)
Nor does California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325, 164 Cal.Rptr.3d 25 ( Clean Energy ), assist SSE. In that case, the court concluded the city had improperly divided CEQA duties between the planning commission and the city council and, thus, the purported "delegation" to the commission was invalid. The action by the city council as the final decision maker, however, was valid. ( Id. at pp. 1338, 1342, 164 Cal.Rptr.3d 25.) As a consequence, there was no valid appeal to be taken from the decision by the commission under the municipal code "appeal" provisions. ( Id. at pp. 1345–1346, 164 Cal.Rptr.3d 25.) Nor did the code provide for any appeal from the city council's action. ( Id . at p. 1346, 164 Cal.Rptr.3d 25.) Moreover, in that venue, the objector had preserved issues for judicial challenge by submitting comment letters before the city council acted. ( Id. at pp. 1346–1348, 164 Cal.Rptr.3d 25.) The Clean Energy court not only did not take issue with Tahoe Vista, but it reaffirmed the exhaustion principles established by that case ( Clean Energy, at pp. 1342–1344, 164 Cal.Rptr.3d 25 ), concluding only that the circumstances in the case before it differed and the objectors complied with the dual requirements of section 21177 in the one forum that had validly acted, namely the city council. ( Clean Energy, at p. 1348, 164 Cal.Rptr.3d 25 ; ibid. ["The situation presented to us is dissimilar to the situation addressed in Tahoe Vista, where the ultimate decisionmaking authority's review was specifically confined to issues raised in the administrative process."])
Here, the County's appeal procedure is akin to that in Tahoe Vista. (See Clews Land, supra, 19 Cal.App.5th at pp. 185–187, 227 Cal.Rptr.3d 413.) Accordingly, SSE was required to comply with that procedure.
We close with one final point as to exhaustion—that the petitioner challenging a CEQA determination "has the burden of proof to show exhaustion occurred." ( North Coast, supra, 216 Cal.App.4th at p. 624, 157 Cal.Rptr.3d 240 ; accord, Sierra Club, supra, 163 Cal.App.4th at p. 536, 78 Cal.Rptr.3d 1.) And in this regard, a list of string-cites to the administrative record without explanation as to "how each citation supports the assertion [the public agency] was ‘fairly appri[s]ed’ " of the asserted noncompliance with CEQA, is not sufficient. (See Sierra Club, at p. 536, 78 Cal.Rptr.3d 1.) With this overview of CEQA principles and the exhaustion requirement in mind, we turn to the five issues SSE raises on appeal.
See footnote *, ante .
I. Consistency with General Plan
SSE lastly contends the EIR failed to address the project's asserted inconsistencies with the County's general plan.
1. Not A CEQA Issue
In the trial court, the County and Syar pointed out an EIR must address only inconsistencies with a general plan. Because the County determined the project is consistent with its general plan, they maintained the EIR is not deficient in this regard. Further, to challenge the County's consistency determination, the County and Syar maintained SSE was required to proceed by way of a separate cause of action under Code of Civil Procedure section 1085 for ordinary mandamus, or a separate proceeding for such—neither of which SSE pursued. The trial court agreed and therefore did not consider the merits of SSE's general plan consistency argument.
In The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, 893–894, 222 Cal.Rptr.3d 423 ( Highway 68 ), the Court of Appeal explained, "the issue of whether a proposed project is consistent with a county's general plan is not a CEQA issue, and therefore the mandate procedures provided for CEQA violations at section 21168.9 do not apply. The CEQA Guidelines provide: ‘The EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans.’ (Guidelines, § 15125, subd. (d).) Thus, as this court has stated, ‘ " ‘[w]hile there is no requirement that an EIR itself be consistent with the relevant general plan, it must identify and discuss any inconsistencies between a proposed project and the governing general plan. [Citation.]’ [Citation.] ‘Because EIRs are required only to evaluate "any inconsistencies " with plans, no analysis should be required if the project is consistent with the relevant plans. [Citation.]’ [Citation.]" [Citation.]’ ( Pfeiffer , supra , 200 Cal.App.4th at p. 1566 .)"
Rather, an " ‘agency's decisions regarding project consistency with a general plan are reviewed by ordinary mandamus.’ ( San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 515 ....)" ( Highway 68, supra, 14 Cal.App.5th at p. 894, 222 Cal.Rptr.3d 423.)
The Highway 68 court went on to explain, "[u]nder the Government Code, every county and city is required to adopt ‘ "a comprehensive, long-term general plan for the physical development of the county or city...." ( Gov. Code, § 65300.) ... " ‘[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.’ [Citation.]" [Citation.]’ ( Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815 ....) [¶] ‘ " ‘An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.’ [Citation.]" [Citation.] State law does not require perfect conformity between a proposed project and the applicable general plan....’ ( Friends of Lagoon Valley, ... at p. 817 .)" ( Highway 68, supra, 14 Cal.App.5th at p. 896, 222 Cal.Rptr.3d 423.)
The Highway 68 court then addressed the applicable standard of judicial review. " ‘When we review an agency's decision for consistency with its own general plan, we accord great deference to the agency's determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. [Citation.] ... A reviewing court's role "is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies." [Citation.]’ " ( Highway 68, supra, 14 Cal.App.5th at p. 896, 222 Cal.Rptr.3d 423, quoting Monterey, supra, 87 Cal.App.4th at p. 142, 104 Cal.Rptr.2d 326.)
"Accordingly, an agency's ‘findings that the project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion. [Citation.]’ ( A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648 ....) The party challenging a city's determination of general plan consistency has the burden to show why, based on all of the evidence in the record, the determination was unreasonable. ( California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 639 ....)" ( Highway 68, supra, 14 Cal.App.5th at p. 896, 222 Cal.Rptr.3d 423.)
Despite its attention having been directed to Highway 68 , SSE did not, in the trial court, ask for leave to amend its writ petition to add a cause of action for ordinary mandamus under Code of Civil Procedure section 1085. Nor did it make any general plan inconsistency argument based on the standards of judicial review applicable to ordinary mandamus and, specifically, to an agency's consistency determination. On appeal, SSE maintains it was not required to challenge the County's determination that the project is consistent with its general plan by way of ordinary mandamus. Rather, as we understand SSE's argument, it contends "consistency" and "inconsistency" for purposes of CEQA mean something different than in the context of general planning and land use law. SSE explains as follows: "The injury that [it] claims is not the Project's inconsistency with the General Plan as a whole as would be addressed by a Planning and Zoning Law ( Gov. Code, § 65000 et seq. ) action, but rather the failure to adequately inform the public and decisionmakers about inconsistencies with any policies as required by CEQA. Such information would apprise the public and decisionmakers with the potential impacts of the inconsistency and advise the public of the basis for the County's determination." In fact, SSE expressly states it "is not arguing that the Project approval must be set aside due to inconsistency with the General Plan as a violation of the Planning and Zoning law, but rather that the EIR failed to disclose inconsistencies with the General Plan as a violation of CEQA's informational requirement."
Try as SSE might to explain that it is not challenging the County's substantive consistency determination, that appears to be exactly what SSE is doing, as it repeatedly maintains the EIR "failed to disclose inconsistencies" with the General Plan. It also appears that SSE's specific complaint is that the EIR failed to address asserted inconsistencies with "AWOS" (agriculture, watershed, and open space) designated lands.
Furthermore, SSE cites no authority supporting its assertion that "inconsistency" for CEQA purposes is different than for purposes of general planning and land use law. It points to CEQA guideline section 15125, subdivision (d). But as the Highway 68 court pointed out, this guideline states: "The EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans." (Guidelines, § 15125, subd. (d).) The guideline in no way suggests that as used in CEQA, the term "inconsistency" has an altogether different meaning than under basic planning and land use law. Indeed, while SSE maintains a different understanding of "inconsistency" must apply in the context of CEQA, it fails to articulate the standard for identifying such "inconsistencies." At some points in its briefing, SSE seems to suggest "potential" inconsistencies must be identified and addressed. But that is not what the guideline requires in a final EIR. And while SSE deems it readily apparent that there are general plan "inconsistencies" for purposes of CEQA, the County determined otherwise, suggesting SSE is advocating an eye-of-the-beholder approach. But such a subjective measure is even further removed from the mandate of the guideline. (Cf. South of Market, supra, 33 Cal.App.5th at p. 353, 245 Cal.Rptr.3d 174 [" ‘applicable plan’ within meaning of Guidelines, § 15125, subd. (d) is plan that has already been adopted and thus legally applies to project; draft plans need not be evaluated,’ " quoting Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145, fn. 7, 58 Cal.Rptr.2d 152 ].)
In fact, we note that in Golden Door II , cited by SSE as support for other asserted deficiencies in the EIR, the Court of Appeal addressed whether the county-wide Climate Action Plan at issue was consistent with the County's general plan update that called for the reduction of greenhouse gases and adoption of a Climate Action Plan. ( Golden Door II, supra, 50 Cal.App.5th at pp. 482, 486, 264 Cal.Rptr.3d 309.) The appellate court did not treat this as a CEQA "informational" issue; rather, it applied the standard of judicial review applicable in ordinary mandamus to review an agency's consistency determination and concluded, "in light of the highly deferential standard of review," the trial court had erred in ruling the Climate Action Plan was "inconsistent" with County's general plan. ( Id. at p. 501, 264 Cal.Rptr.3d 309.)
At oral argument, SSE cited to Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 21 Cal.Rptr.3d 791 (Pocket Protectors ) and Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 134 Cal.Rptr.2d 322 (Eel River ), in support of its assertion Highway 68 or as to the content of an EIR and scope of judicial review of a consistency determination. Both cases are distinguishable. The issue in Pocket Protectors was whether there was a "fair argument" the proposed project was inconsistent with the applicable PUD (Planning Unit Development) designation, requiring the preparation of an EIR. The court specifically contrasted the "much lower" standard applicable in this context than in the context of reviewing an EIR and an agency's ultimate consistency determination. (Pocket Protectors, supra, at pp. 933–936, 21 Cal.Rptr.3d 791.) The issue in Eel River was whether the agency was required to consider whether the proposed project was consistent with local county general plans. The court concluded it was not, as the statute required only compliance with zoning and building ordinances. (Eel River, at p. 879, 134 Cal.Rptr.2d 322.) Neither case dealt with a challenge to an agency's consistency determination made in the course of preparing a full EIR.
2. Merits
Even assuming SSE's "informational" standard of general plan "consistency" under CEQA has merit (and we do not believe it does), the project's consistency with the general plan was addressed throughout the environmental review process. The draft EIR, for example, included detailed discussion—"each technical section of the DEIR (Chapter 4.1 through 4.17) has been evaluated for consistency with policies contained in the existing Napa County General Plan (2008)." The County also prepared a "Syar Napa Quarry Surface Mining Permit P08-0037 General Plan Consistency Analysis" that was considered during the proceedings before both the Planning Commission and the Board of Supervisors. This provided ample basis for public discussion of the project's consistency with the general plan and informed decision-making. (See North Coast Rivers, supra, 216 Cal.App.4th at pp. 632–633, 157 Cal.Rptr.3d 240 [detailed discussion of consistency with general plan not required].) We also observe that the Board of Supervisors addressed SSE's various claims that the project was inconsistent with the general plan, including its claim that it was inconsistent with AWOS-designation. In this regard, the Board's decision states:
"General Plan Consistency:
"The General Plan and Zoning consistency analysis in the EIR is for informational
purposes only and to disclose potential conflicts. (CEQA Guidelines Section 15125(d).) It is not binding on the Commission or the Board which are the bodies charged by law with interpreting the County's land use policies and rendering the final determination on a project's consistency or lack thereof. ( San Francisco Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, 668 .) To assist the Commission with its determination, staff prepared and released a detailed General Plan and Zoning consistency analysis in August 2015. Although the project evaluated in this analysis was reduced production and reduced footprint hybrid, the conclusions are still valid as to the Syar Modified Project Plus Area C—approved by the Planning Commission—since both the project evaluated in the analysis and the approved project include reduced production and reduced footprints from the originally proposed project evaluated in the EIR.
"The parcels within the Syar holding have General Plan Designation of AWOS, I and PI. The Conservation and Recreation and Open Space (ROS) Elements provide the bulk of the County's goals and policies regarding conservation of natural areas and open space. The ROS Element includes preservation of natural resources and the managed production of resources as one of the uses and benefits of open space. [Citation.] The Conservation Element has policies and actions that are intended to conserve open space lands that contain important natural resources that are associated with open space land use benefits. [Citation.] Within the Conservation Element the managed production of resources is specifically identified and addressed. This element states that preserving open space resources to meet the community's conservation goals while also addressing local needs for productive raw natural materials requires a balanced approach and contains specific goals and policies that address open space as it pertains to the conservation of natural resources, and stresses the conservation and prudent management to the County's mineral resources for current and future generations. [Citation.] Agricultural Preservations and Land Use Policy AG/LU-93 further provides that the ‘County supports the continued concentration of industrial uses in the South County area as an alternative to the conversion of agricultural land for industrial use elsewhere in the county.’
"As discussed above, aggregate mining and processing activities are allowed on the permittee's property, including the Pasini Parcel, with a surface mining permit. The General Plan policies contemplate mining. Because the current land use and zoning designations allow mining, neither a general plan land use re-designation nor a rezoning of the holding are necessary to accommodate the project. Both the Quarry and the zoning code that allows for surface mining in any zoning district pre-date Measures J and P. The Quarry has been in existence since the 1800s and ... since 1955 the County Code has permitted surface mining in any zoning district with an approved surface mining permit and Measure J and P did not change this provision of the County Code. (County Code Section 18.120.010(B)(3).)
"Furthermore, the project site, and portions thereof, are also mapped or classified by 1) the State Geologist as Resource Sector H, Mineral Resource Zone MRZ-2 (a), which indicates that significant deposits are present, and 2) the County Land Use Map as a Mineral
Resource ... area, which is applied to known mineral resources based on mapping prepared by the State of California. These [mineral resource] designations further reinforce that mining within the project site's land use and zoning designations is a contemplated and allowed use."
In sum, consistency with the general plan was discussed at length throughout the project review process. And while SSE's perspective is that the project is "inconsistent" with the County's general plan, on this record, it was the prerogative of the County to conclude otherwise. "Determining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is, emphatically not the role of the courts to micromanage’ " such decisions. ( North Coast Rivers, supra, 216 Cal.App.4th at p. 632, 157 Cal.Rptr.3d 240, italics added.)
III. DISPOSITION
The trial court judgment is AFFIRMED. Each party to bear its costs on appeal.
We concur:
Humes, P.J.
Margulies, J.