In a unanimous, yet unpublished opinion, the Sixth District Court of Appeal affirmed the 142-page decision of the trial court denying the petition for a writ of mandate by petitioners Highway 68 Coalition (Highway 68) and Landwatch Monterey County (Landwatch). The petitions sought to set aside Monterey County’s (County’s) approval of an 870-acre residential development consisting of residential units, agricultural industrial uses, roadway improvements, and several hundred acres of open space, known as the Ferrini Ranch project (Project). In a point-by-point analysis, the Court of Appeal determined that the Environmental Impact Report (EIR) complied with the California Environmental Quality Act (CEQA) and the County made no prejudicial errors in its analysis. The court also held that the County was not required to recirculate the document because no post-EIR significant new information arose. The County’s approval of the Project as the environmentally preferred alternative (Alternative 5) was appropriate because CEQA requires agencies to approve environmentally superior alternatives, if they are feasible. [Highway 68 Coalition v. County of Monterey, 2019 WL 3369837 (6th Dist. July 26, 2019).]
Factual and Procedural Background
In 2005, the County Planning Commission deemed complete the application for approval submitted by Domain (formerly Bollenbacher & Kelton, Inc.) (Applicant) for 212 lot residential development project on 870 acres in Monterey County. The original Project consisted of 212 total residential lots comprised of 146 clustered single-family residential lots on 178 acres with another 23 clustered single-family lots and 43 inclusionary housing units on 13 acres. The Project also included 35 acres of agricultural industrial uses, 43 acres of roadway improvements, and 600 acres of open space all fronting Highway 68 to the south and split by Toro Regional Park. The DEIR was circulated for public review in 2012 with a recirculated draft EIR (DEIR) released in 2014 that identified a new Alternative 5 as the environmentally superior alternative because it reduced residential lots to 185 and increased open space to 700 acres from the original Project. Subsequently, the County prepared a final EIR (FEIR) and responded to comments received on the DEIR and recirculated DEIR.
The planning commission held several public hearings in 2014 on the Project and ultimately recommended that the board of supervisors (Board) certify the EIR and approve the Project as described in Alternative 5, which it did. The Board adopted findings and a statement of overriding considerations for each potentially significant environmental effect and found the benefits of the project outweighed its unavoidable impacts. The Board simultaneously approved a combined development permit for Alternative 5 including use permits for tree removal and for development on slopes exceeding 30 percent.
Highway 68—a “social welfare organization” comprised of property owners and tenants living near the Project site—filed a petition for writ of mandate to set aside the County’s certification and approval due to CEQA violations. Highway 68 alleged, among other things, that the County violated CEQA because the EIR inadequately analyzed environmental impacts to traffic, water, air quality, and project alternatives, and presented an unstable project description. Landwatch filed a similar petition also alleging the County had failed to comply with CEQA. After four days of hearing, denied the writ petitions in full. Petitioners appealed from the judgment on select issues.
The Court of Appeal’s Decision
Highway 68 Issues on Appeal
Highway 68 asserted that the EIR did not comply with CEQA or was otherwise legally inadequate regarding the project description, alternatives analysis, and visual resources impacts analysis.
First, the court rejected Highway 68’s claim that the project description was “unstable” because it had undergone substantial changes between the DEIR and the project that was approved. The court acknowledged that the Project had changed but concluded that the changes did not alter the “basic characteristics of the project”—as it remained a residential subdivision on 870 acres. The court further explained that any changes made in Alternative 5 were to “reduce or avoid environmental impacts,” and were therefore allowable as a “key” purpose of CEQA.
With respect to alternatives, the court concluded that Highway 68 did not meet their burden of showing that the analysis was inadequate because information provided in the EIR allowed for “informed decision making.” Highway 68 argued that the EIR no longer evaluated a reasonable range of alternatives because the Project’s original access point through Toro Regional Park was rendered infeasible due to a nearby conservation easement. The court disagreed on the ground that the “basic objectives of the project” could still be accomplished even assuming, for the sake of argument, that the conservation easement rendered the original access point infeasible. Furthermore, the DEIR and RDEIR sufficiently discussed the impacts of the approved alternative access point. The court noted that Alternative 5’s access point presented significantly fewer impacts overall, as a signalized intersection on a highway that already hosts several similar intersections, in contrast to the original access point through a public park that would require more tree cutting and habitat disturbance.
Lastly, Highway 68 claimed that the EIR’s visual impacts analysis did not comply with County policies requiring visually sensitive properties to be “staked and flagged.” The court found that even if the County was required to comply with this policy prior to certification of the EIR, it was not prejudicial because the EIR’s extensive analysis of the visual impacts of the Project adequately and properly informed public involvement and decision-making. The court similarly rejected Highway 68’s claim that the County had improperly deferred mitigation because the County made permits “contingent upon compliance” with this mitigation measure and others—which is allowable under CEQA.
Landwatch Issues on Appeal
Landwatch claimed that the EIR’s cumulative groundwater impact analysis was inadequate for two reasons: 1) the EIR relied on unreviewed or unconstructed groundwater management projects to determine no cumulative impacts; and 2) the EIR failed to disclose that existing overdraft and seawater intrusion will continue with Project implementation without full development of those projects. The court disagreed. Initially, the court pointed out that it is beyond the scope of an EIR to solve existing water supply problems. The court, nevertheless, found that the EIR adequately disclosed that overdraft and seawater intrusion problems will remain post-Project—but would not be further exacerbated.
Landwatch also claimed that the EIR improperly used the “ratio theory” when it determined that the Project’s impact on water supply was not cumulatively considerable. The ratio theory is the disallowed notion that a project’s impact can be relatively measured against the existing environmental impact to determine if it is cumulatively considerable. The court found, however, that the EIR did not use the ratio theory. It concluded that the EIR included enough information to make a reasonable determination that the Project’s estimated water use of 6 percent over existing demand from the supplying wells does not constitute a cumulatively considerable impact.
With respect to recirculation, the court rejected Landwatch’s claim that new information regarding ongoing overdraft and seawater intrusion triggered recirculation. The court reiterated that CEQA does not require a project to resolve an existing problem. The court held that any new information on this issue “cannot constitute significant new information under CEQA” because the EIR did not base its conclusions on the ability of groundwater management projects to solve the ongoing problem.
Lastly, the court found that fee-based mitigation is allowable for cumulative impacts if there is evidentiary support proving a financial contribution was, or will be, made. Here, the Project site property owner had been making financial contributions in the form of a “‘special tax’” to the Salinas Valley Water Project. The EIR included these contributions as mitigation for groundwater impacts. Landwatch argued this approach was inadequate because the groundwater management project does not, by itself, “‘halt seawater intrusion’” in the affected basin. But, as the court explained, mitigation is “not defined as elimination of an adverse environmental effect” but only a minimization of significant effects. Further, Landwatch offered no evidence showing the Salinas Valley Water Project does not reduce adverse effects of the Project.
Conclusion and Implications
Although the decision is unpublished, the decision provides helpful guidance to CEQA practitioners regarding modifying a project in response to environmental concerns and evaluating cumulative groundwater impacts. The case makes clear that an agency does not violate CEQA by approving an environmentally superior alternative analyzed in an EIR. Further, CEQA does not require individual development projects to solve regionwide groundwater problems.
The unpublished opinion is available at: https://www.courts.ca.gov/opinions/nonpub/H045253.PDF
(Casey Shorrock, Laura Harris, and Christina Berglund)
