In a 46-page opinion filed February 14 and ordered published on March 15, 2017, the Fourth District Court of Appeal rejected numerous CEQA challenges to Riverside County’s approval of an EIR for Specific Plan 380, a 200-acre master-planned, mixed-use community in the County’s French Valley region.  Residents Against Specific Plan 380 v. County of Riverside (Hanna Marital Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) _____ Cal.App.5th ______.  In affirming the trial court’s judgment denying the plaintiff/appellant group’s mandate petition, the Court of Appeal found no merit in any of the group’s arguments that County failed to comply with a number of procedural, informational and substantive CEQA requirements.

Nature of Appellant’s Arguments

Most of appellant’s arguments were procedural in nature and failed along with their erroneous position as to the timing of project approval.  For example, appellant contended the County improperly substantially modified the project after approving it; approved it without concurrently adopting CEQA findings, a statement of overriding considerations, and a mitigation plan; and failed to recirculate the final EIR after modifying the project.  It also argued the final EIR failed to adequately analyze the project’s mixed-use areas, that County failed to adopt all feasible mitigation proposed in draft EIR comments, and that County issued a misleading notice of determination (NOD) after project approval.

County’s Project Approval And CEQA Review Process And Lower Court Litigation

The draft and final EIRs evaluated a version of Specific Plan 380 that divided the 200-acre site into eight planning areas, describing the nature, density and intensity of likely allowed uses in each.  The final EIR concluded the plan’s mitigation measures would reduce all environmental impacts to a less-than-significant level except for construction emissions of VOCs, NO_x, PM₁₀, and PM_2.5, and temporary construction noise impacts, which would remain significant even after mitigation.  The final EIR’s responses to comments explained that County did not require certain SCAQMD-recommended air quality impact mitigation because the applicant did not anticipate the reasonable availability of the recommended Tier 3 and Tier 4-related equipment during the construction period.  The responses explained County rejected measures recommended by the City of Temecula – specifically, compliance with (1) the then-current 2010 California Energy Code and (2) 2010 California Green Building Standards prescriptive mitigation measures (e.g., attic fans, whole house fans, photovoltaic solar water heaters) – as unnecessary in light of its required (1) 15% exceedance of 2008 Title 24 energy efficiency standards, and (2) adoption of a more flexible performance standard in lieu of prescriptive measures.

County’s Planning Commission considered the plan and final EIR at an April 18, 2012 hearing, proposed certain revisions, and continued the hearing to October 17, 2012 to consider real party’s responsive revisions, which included changes to four of the planning areas.  County’s environmental consultant analyzed the changes in a report and concluded they would not change the project’s footprint and would therefore not change impacts to agricultural, biological, cultural or paleontological resources, or geology and soils, while they would reduce project scale and thus to some extent aesthetic, GHG, compatibility, air quality, utility use, traffic, and water quality impacts, while noise impacts would be unaffected.  The consultant thus concluded CEQA’s recirculation requirement was not triggered, and the Commission recommended approval of the modified plan to County’s Board of Supervisors.

The Board considered the revised plan on December 11, 2012.  The day before that meeting, and over a year after the DEIR comment period, appellant’s counsel submitted a comment letter objecting to the project and FEIR.  The letter proposed noise mitigation measures and reiterated SCAQMD’s and Temecula’s mitigation proposals.  The Board recommended certain plan modifications and voted to have staff implement them and return in a week with a revised plan.  Staff did so with a plan revising several planning areas and merging two into one for a new total of seven.  The modifications did not change the project footprint or alter the number of residential units or allowable commercial square footage.  Their purpose was to move denser development away from the project’s western and southern edges (and adjacent existing low density residential development) into the central portion of the project site.  County’s environmental consultant analyzed the changes in another report, likewise concluding they would cause no new significant impacts, would in some cases reduce the severity of impacts, were not amenable to additional feasible alternatives or measures to lessen significant impacts, and, hence, did not trigger recirculation.

County’s Board voted to accept the planning department’s recommendation to tentatively certify the FEIR and approve the plan and related general plan and zone changes, with the modifications incorporated.  Between December 2012 and May 2013, real party and staff finalized the plan modifications that had been tentatively approved, and staff corresponded with and advised appellant’s counsel they were working to redraft the final exhibits before the Board acted to certify the FEIR and adopt the necessary legislative approvals.  As revised, Specific Plan 380 moved denser uses to the center of the project site and reduced development at the periphery, creating a buffer of residential uses for the existing residential areas to the south and west, all without changing the project’s footprint or overall residential and commercial density.

On November 5, 2013, the Board certified the FEIR and approved the plan and related legislative approvals, and its EIR resolution included findings of fact, a Mitigation Monitoring and Reporting Program (MMRP), and a statement of overriding considerations.  The same day the planning department filed a notice of determination (NOD) which inadvertently used an out-of-date project description.

Appellants timely sued, the trial court denied the writ, and appellant appealed.

The Court of Appeal’s Opinion

Key points and holdings of the Court of Appeal’s published opinion include:

• With respect to the standard of review: “Our review of the County’s factual findings for substantial evidence is highly deferential.”  (Citing California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 984.)  “The agency is the finder of fact and we must indulge all reasonable inferences from the evidence that would support the agency’s determinations and resolve all conflicts in favor of the agency’s decision.”  (Quoting Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.)  The Court further noted “substantial evidence” means enough relevant information and reasonable inferences that a “fair argument” can be made to support a conclusion – even though other conclusions might be reached – and that “[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.”  (Citing CEQA Guidelines, §§ 15088.5(a), 15384(a), and quoting Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.)
• The County’s Board properly approved the project after the plan was modified. The administrative record (including hearing minutes) makes clear its December 18, 2012 action was only a tentative approval, and that final approval was given later on November 5, 2013, after codification of the discussed plan changes.  Moreover, the Board requested and staff incorporated the late plan modifications Appellant objected to before the tentative approval.  Staff informed Appellant’s counsel of the relevant status.  It was the Board’s November 5, 2013 actions adopting the necessary resolutions and ordinance that “commit[ted] the agency to a definite course of action in regard to [the] project” and thus constituted project approval.  (Citing  CEQA Guidelines, § 15352(a); Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139.)  The Court thus found “no merit to the claim the County approved the project before making substantial changes to the plan.”
• Appellant’s contention that County violated Public Resources Code § 21081 by approving the project without concurrently adopting required findings, a MMRP, and statement of overriding considerations rested on, and failed with, its same false factual premise regarding approval timing.
• Appellant’s complaints about the inaccurate NOD were meritless and did not constitute prejudicial error in any event. Despite the technical project description errors, the notice substantially complied with CEQA’s informational requirements by correctly identifying the project, its location, the fact an EIR was prepared and certified, the agency’s conclusion the project will have a significant environmental effect, that mitigation measures were made conditions of approval, that there is a MMRP, the name and number of County’s contact person, and the physical location of the FEIR and record.  Even the erroneous brief description of the project contained much accurate information, and was “close enough to the project as approved” to provide the public with the necessary information that it is the NOD’s purpose to convey.  Moreover, there was no prejudice to Appellant because the only remedy for a defective NOD is to hold CEQA’s short 30-day statute of limitations does not apply.  Since Appellant brought a timely challenge to the plan as actually approved, that remedy could obviously provide it no relief.
• County’s decision not to recirculate the FEIR was supported by substantial evidence and not erroneous under well-established CEQA principles. New information added to an EIR post-consultation and pre-certification is not “significant” unless it changes the EIR so as to deprive the public of a meaningful opportunity to comment on a substantial adverse environmental effect or a feasible way to mitigate or avoid such an effect.  (Citing Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129; Guidelines, § 15088.5(a).)  New information that merely “clarifies” or “amplifies” the previously circulated DEIR does not trigger recirculation.  (Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 447.)
• With respect to the challenged changes to Specific Plan 380, the Court observed they “have to do with the details of the allocation and arrangement of uses within the project site, not the kinds of uses permitted or the overall extent or density of the proposed development. The footprint of the project remains the same.”  Appellant’s arguments regarding potential impacts from changed traffic patterns and the rearranged mix of uses were addressed by County’s expert consultants and determined to lack merit when they evaluated whether the FEIR had to be revised and recirculated.  With regard to the experts’ conclusion that the amount of traffic would not change, “[t]he basis for their conclusion was the project as analyzed in the final EIR and the revised project permit exactly the same number of residential units and exactly the same amount of commercial development.  We conclude the County’s determination was supported by enough relevant information and reasonable inferences – specifically that the number of trips is controlled by the number of residential units and the square footage of commercial development – that a fair argument can be made to support its conclusion.”  The Court also credited the traffic and environmental consultants’ explanation that internal traffic patterns need not be analyzed at the planning EIR stage.  It similarly found enough information and reasonable inferences to support County’s determinations that recirculation was not required due to any new or substantially increased biological, noise or “land use inconsistency” impacts of the changes.
• The Court rejected Appellant’s challenges to the scope of the EIR’S analysis – which assumed the mixed-use area would include, and analyzed the impacts of, a skilled nursing facility of a specific size (“CCRC”) even though such was not required and other uses were possible – applying the substantial evidence standard. It noted that “CEQA challenges concerning the amount or type of information contained in the EIR, the scope of the analysis, or the choice of methodology are factual determinations, reviewed for substantial evidence” (quoting Santa Monica Bay Keeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1546), and that the EIR expressly provided that if the developer decided not to build the CCRC and to pursue other options, it could do so only if compatible with adjacent areas and no new environmental impacts would occur, based on County’s further review.  Per the Court: “The agency merely decided to limit the analysis to the proposed and likely development while imposing restrictions that would limit the scope of potential changes to the development plan.  We conclude that determination was not error.”
• The Court held County did not abuse its discretion by approving the project while failing to adopt proposed air quality and late- proposed noise mitigation measures. As noted earlier, “the Planning Department determined the [SCAQMD-] proposed [air quality] mitigation measure was not feasible because the applicant judged the proposed equipment meeting higher emissions standards would not be available at the time of construction.”  The Court held the Appellant’s objection to this response as inadequate because it “cited no evidence or reasoning” to misapprehend the agency’s obligations in responding to proposed mitigation measures.  While acknowledging a detailed, good faith response with reasoned analysis, rather than a conclusory statement unsupported by factual information, is required, the Court held the County’s “stated reason for not adopting the proposed additional mitigation measure was sufficiently detailed to support the County’s determination that the more stringent standard was not feasible, at least at the time the County approved the project.”
• Regarding the rejected measures (described earlier) proposed by the City of Temecula, the Court had this to say: “County determined adopting the proposed mitigation measure would not be useful because the [adopted] measure already set an absolute standard and any legally mandated increase in the standard would control in any event.  We conclude the County’s reasoned response . . . provided adequate support for its decision not to adopt it. [¶] . . . The County’s preference for a performance standard [in lieu of proposed prescriptive mitigation measures], which will give the applicant and developer leeway and reduce enforcement and enforceability problems with the proposed very specific prescriptive measures, [likewise] provided an adequate basis for refusing to adopt those measures.”  (Citing Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 245.)
• Finally, regarding Appellant’s complaint about County’s response to its belatedly proposed noise mitigation measures, the Court held they came 14 months after the close of the comment period and “[t]hus, the County was not required to make a formal response” and, “[i]n any event, the County did not abuse its discretion in deciding not to adopt the noise mitigation measures which require electric construction equipment that may or may not be available or duplicate existing requirements, like using noise attenuation fences and limiting idling.”

Conclusion and Implications of the Decision

The Court of Appeal’s lengthy and well-reasoned opinion breaks little or no new legal ground, but nonetheless provides important guidance to lower courts regarding the proper application of the highly deferential substantial evidence standard of review.  Its application of a “substantial compliance” test to Appellant’s arguments challenging the NOD is interesting, and makes sense under the factual circumstances showing a complete lack of prejudice from any project description error.  The deference shown to the conclusions of the County’s environmental consultants regarding the impact of project modifications is also interesting, and a big factor was obviously the care taken by the applicant to keep all project revisions within the original physical project footprint and to avoid any increase in overall units or density.  The Court’s treatment of County’s responses to comments as containing sufficient detail and constituting substantial evidence in support of the EIR’s conclusions also illustrates proper application of deferential substantial evidence review in the EIR context. While the Court stopped short of saying late comments cannot serve as the basis for litigation arguments, it showed little inclination to seriously entertain arguments that County erred in failing to adopt mitigation measures first proposed by Appellant more than a year after the close of the DEIR comment period.