Endangered Habitats League, Inc. v. County of Orange

Opinion

This is an appeal from a judgment that denied petitions for a peremptory writ of mandate to compel the County of Orange to set aside various approvals for a development project, along with other relief. The appellants are Endangered Habitats League, Sierra Club, Rural Canyons Conservation Fund, Sea and Sage Audubon, Inc., California Native Plant Society, California Oak Foundation, and Ray Chandos (collectively Endangered Habitats League). Rutter Development Corporation, Inc. (Rutter) is the developer.

At issue is the approval of the area plans for the two sites that compose the project. The EIR reveals that under the HCM method, the project would cause the LOS on Santiago Canyon Road to fall to D/E in 2005 and to E by 2020. Under a different analysis, called the V/C method (for volume/capacity ratio), the results are acceptable — LOS B in both 2005 and 2020. The EIR concludes “the V/C methodology is considered more representative of actual conditions,” and, relying on it, finds no significant impacts on Santiago Canyon Road.

The Board of Supervisors acknowledged the problem under the HCM method and likewise solved it by relying on the V/C analysis. In findings of fact in support of the EIR, the Board determined project impacts on transportation and circulation would be reduced to insignificance after mitigation. But the explanation for this finding reveals the Board’s action was based upon uncritical adoption of the EIR’s use of the V/C method: “Both short-range and long-range project and cumulative impacts to Santiago Canyon Road would be less than significant under the updated V/C analysis method. Existing and future LOS for this arterial exceed LOS ‘C’ and are therefore unacceptable . . . under the HCM methodology. The V/C methodology is considered more representative of actual conditions .... Project impacts to Santiago Canyon Road, therefore, are considered less than significant.”

It is clear the project is inconsistent with the general plan’s traffic service level policy. The general plan requires LOS C as determined under the HCM method, and the project does not comply. That it does so under the V/C method is of no import, since the general plan is unambiguous in demanding the evaluation be made by the HCM method. The approval of the area plans, AP 99-03 (Saddle Creek) and AP 99-07 (Saddle Crest), must be set aside.

Rutter’s several arguments for consistency are all based on misreadings— and misrepresentations — of the record. It contends the EIR establishes the

Rutter argues the HCM method was used because the EIR considers it along with the V/C method. This is semantic sleight of hand. Both the EIR and the Board of Supervisors relied on the V/C method to find traffic levels acceptable, after acknowledging they were not under the HCM method. You do not “use” something by disregarding it.

Equally disingenuous is an argument that the V/C method was not used because it is not mentioned in sections of the EIR setting out thresholds of significance and mitigation measures. But neither has anything to do with measuring levels of service before or after the project. Any suggestion that the V/C method was not used in the EIR is frivolous.

A bolder argument seems to say the Board of Supervisors did not rely on the V/C method, and all that happened was “clumsy wording of the Board’s findings that mention ‘the V/C method.’ ” That flat out misrepresents the record. Here is what the Board said explaining why there was no significant impact on Santiago Canyon Road: “The V/C methodology is considered more representative of actual conditions .... Project impacts to Santiago Canyon Road, therefore, are considered less than significant.” So it is crystal clear that the Board of Supervisors relied on the V/C method, and the V/C method alone, in approving the project.

Finally, Rutter asserts that required mitigation measures will bring Santiago Canyon Road up to HCM service level C. We cannot agree.

The mitigation measures in question are contributions to two road improvement programs for Santiago Canyon Road. One is the Santiago Canyon Road Major Thoroughfare and Bridge Fee Program. The other is a supplemental program to fund improvements to Santiago Canyon Road. The EIR states that “upon implementation” of these mitigation measures (along with others not relevant here), “impacts to transportation and circulation will be less than significant.” The findings of fact adopted by the Board of Supervisors in approving the EIR essentially state the same thing.

The problem we have is that the EIR does not state mitigated impacts will be less than significant under the required HCM method. Since the EIR uses the V/C method to analyze traffic impacts initially, we cannot reasonably assume the statement about mitigated impacts now referrs to the HCM method.

At the hearing, Speegle went further. Referring to the balancing provision, he said “there’s a general amendment . . . that would be applied throughout the specific plan area, and it explicitly permits a balancing of the competing policies or requirements of the specific plan so that inconsistency with one policy does not automatically disqualify a project from consideration.” (Italics added.) A little later, he put it this way: “[T]he specific plan already explicitly provides for some balancing of development and design guidelines, for example ... the planning commission [can] find a project is in overall compliance with the guidelines without the project being consistent with each and every guideline. [][] The specific plan amendment would extend this balancing to all specific plan policies and regulations.” (Italics added.)

We cannot uphold the consistency finding, since it is not one a reasonable person could reach on this evidence. The staff report said the amendment applies only to balancing goals and policies, already the practice, yet it acknowledged the amendment would change the approval practice (the amendment does not represent “a major change” in approach). And, of course, if the amendment merely confirmed the extant practice, why was it needed? Speegle was much more direct when he said the amendment allows specific plan “requirements” and “regulations” to be balanced. As assistant planning director, presumably he was as well versed as anyone on the amendment, and no one got up to correct or challenge him. It may be that no balancing of regulations was intended, and the amendment might be clarified on that point. But as it stands, the balancing provision is inconsistent with the general plan.

Rutter contends Speegle’s interpretation of the balancing amendment was an unfortunate and inadvertent misstatement, and every other discussion of the issue in the record states only goals and policies are to be balanced. We are not persuaded. Speegle never said he spoke carelessly or corrected his statements. As for the record, the developer points to the staff report, several places where the amendment is quoted or paraphrased, and an after-the-fact November 18, 2003 letter from its lawyer to the Board of Supervisors regarding a then-upcoming hearing on tract maps for the two sites. Of these, only the staff report is relevant, and it does not support the consistency finding. As we have said, that finding cannot be sustained.

Endangered Habitats contends the amendment’s new regulations for this project are also inconsistent with the general plan, because they relax specific plan regulations otherwise applicable to the project. Right again.

The amendment gives the developer an unacceptable freebie. In effect, it exempts this project from specific plan regulations on tree preservation, grading, and open space, and substitutes new regulations that are less stringent. This, of course, directly contradicts the general plan policy that all new development must comply with all specific plan policies. Consistency requires more than incantation, and a county cannot articulate a policy in its general plan and then approve a conflicting project. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors, supra, 91 Cal.App.4th at pp. 379-380.) Since no reasonable person could have made the consistency finding on the record before us, it must be set aside as arbitrary and capricious. (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors, supra, 62 Cal.App.4th at p. 1338.)

Rutter contends the consistency finding must be upheld because it is entitled to great weight and deference. But the developer makes no attempt to grapple with the evidence or provide us with a citation to something— anything — that reasonably supports the finding. Since no evidence in support of the finding has been identified, we cannot defer to it.

Rutter argues there is no inconsistency because the specific plan amendment need not comply with all specific plan policies, or all specific plan guidelines. The first point contends the general plan never says “all” specific plan policies must be met, so a conflict with some is acceptable. We cannot agree. The general plan states specific plan “policies” must be met, and that means all of them. The second argument is that the specific plan consistency checklist says a project need not be consistent with each and every guideline. That is true. The guidelines are permissive. But the checklist is unequivocal that projects must be consistent with all applicable regulations, which are mandatory. In the absence of that kind of consistency, these textual arguments are to no avail.

The developer relies on Corona-Norco Unified School Dist. v. City of Corona, supra, 17 Cal.App.4th at page 994, for the proposition that a specific plan need not comply with all general plan goals and policies, provided it furthers them and does not obstruct their attainment. That is an accurate statement of the law, but Rutter makes no attempt to show how it is met here. In any event, the case is distinguishable. In Corona-Norco, a school district challenged approval of a city zoning change that permitted new residential

Equally misplaced is citation of Napa Citizens for Honest Government v. Napa County Bd. of Supervisors, supra, 91 Cal.App.4th 342 , for the proposition that specific plan amendments to benefit one project are well supported by case law. But that decision did not involve an amendment to allow one project to go forward, but rather an update of an entire specific plan for an airport industrial area. (Id. at pp. 353-354.) Amending a specific plan for the entire area it covers is different from the present project-specific amendment.

Finally, Rutter argues there is no inconsistency because the amended regulations really do not make any important change to the specific plan. It insists the amended tree regulations promote an environmentally superior project, grading satisfies the alternative grading standards, and the amended open space requirement is essentially the same as the original. We cannot agree.

As to the amended tree regulations, whether this project is environmentally superior — in the developer’s view — has no bearing on the issue at hand, which is consistency with the general plan. If the project does not comply with the general plan, neither we nor the developer can justify its approval on the basis that it appeals to us.

The project qualifies for alternative grading only because the threshold for it was changed. Under the changed standard, alternative grading standards could be invoked upon a showing of sufficient “permanent open space,” rather than “natural open space.” Rutter argues the two are the same, but they are not. There is a vast difference between “permanent open space” approved in the amended regulation and “natural open space” required by the original. It is true, as Rutter points out, that “natural” is not defined in the specific plan. But it has a recognized meaning — “produced or existing in nature; not artificial or manufactured” (Webster’s New World Diet. (4th college ed. 2002) p. 959), or “occurring in conformity with the ordinary course of nature.” (Webster’s 3d New Intemat. Diet. (1981) p. 1506.) Many of the uses permitted in permanent open space are artificial and do not occur in the ordinary course of nature, such as rock walls, easements, remedial grading, fuel modification, and tree planting. It is obvious that alternative grading

The standard used in the EIR is therefore impermissibly lenient. The definition of substantial effect effectively limits significant environmental impact to reducing plant or animal communities below statewide or regional self-perpetuating levels, or making a species threatened or endangered. The proper standard, set out, ante, is considerably broader. The use of an erroneous legal standard is a failure to proceed in the manner required by law that requires reversal. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68 , 88 [ 118 Cal.Rptr. 34 , 529 P.2d 66 ].)

Rutter argues that focusing on the definition of substantial effect is misleading, because the listed criteria are broader and state a proper legal standard. It is wrong. The EIR states an impact would be significant only if it results in a “substantial effect” on the listed criteria. The definition is a limiting factor, and it amounts to an improper legal standard for identifying significant environmental impacts.

B

On deferred mitigation, Endangered Habitats contends the EIR improperly defers analysis and mitigation of eleven project impacts. It is correct as to one.

“Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. [Citation.]” (Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1275.) If mitigation is feasible but impractical at the time of a general plan or zoning amendment, it is sufficient to articulate specific performance criteria and make further approvals contingent on finding a way to meet them. (Id. at pp. 1275-1276.)

The only problem we see is mitigation of construction interference from noise, supply depots, and vehicle staging areas. The EIR provides that before

The remaining mitigation measures challenged by Endangered Habitats are sufficient, since they commit to mitigation and set out standards for a plan to follow. We consider each in turn.

Dirt hauling. During construction, there will be traffic disruption when dirt is hauled away from the sites. The EIR adequately says a construction vehicle plan must be developed and approved prior to issuing grading permits. It provides the plan must assure public safety, restrict the number of daily trips and limit or avoid them during peak hours, set up clearly marked no passing zones, and use “floggers” at site entrances.

Drainage. Endangered Habitats contends mitigation of impacts on the drainage system is deferred because a study to determine the project’s effect on existing drainage facilities is postponed. But the EIR states that impacts on hydrology and drainage are less than significant before mitigation, as well as after it, so we cannot see how waiting for this study makes any difference.

Fuel modification plans. Prior to the issuance of a grading permit, a fuel modification plan must be prepared. The plan has to comply with Orange County Fire Authority guidelines for such plans, and it must be approved by the Orange County Fire Authority. This is not improper deferral since, once again, there is a commitment to mitigate and adequate criteria to determine if the plan to be submitted is adequate.

Gnatcatcher habitat. The EIR states there will be impacts on the gnat-catcher from construction activities, apparently referring to the removal of its habitat in coastal sage scrub and scrub-chaparral ecozone. According to Endangered Habitats, mitigation is deferred because these impacts will be addressed sometime in the future. But the EIR sets out the possibilities — on-site or off-site preservation of similar habitat at a ratio of at least two to one, or one of several possible habitat loss permits from relevant agencies. We believe this enumeration of alternative mitigation measures saves the provision from improper deferral.

Tree restoration. Another mitigation measure for tree loss requires a tree restoration, maintenance, and monitoring plan to be prepared and approved prior to issuing grading permits. It provides the plan must “detail” long-term maintenance and monitoring, include requirements for replanting procedures, and include a contract with a certified arborist for at least 10 years. The arborist must make reports throughout the year and must be given decision-making power over tree care and maintenance. We find these standards sufficient.

Water quality issues. The problem is contaminated runoff from the project. A regional water quality control plan limits the pollutants that may be discharged into local waters. It also requires the county to develop its own plan to reduce pollutants from new development. At the time the EIR was prepared, the county’s plan was being undated.

The EIR requires the developer to prepare a project water quality plan to reduce discharge into storm water runoff. It must incorporate “best management practices,” which are a series of four traps and filters to remove various pollutants (one for trash, a second for biological matter, a third for nutrients and microbial contaminants, and a fourth to deal with fossil contaminants such as oil, grease, and hydrocarbons).

Endangered Habitats argues mitigation of runoff problems is improperly deferred based on four statements in the EIR. These concern water quality in general, fuel modification zones, Aliso Creek, and covenants, conditions, and restrictions (CC&R’s). The first statement appears in a prefatory section entitled “proposed water quality improvements.” It says “[t]o the extent feasible and in accordance with County codes policies and practices, project design features shall be implemented to reduce runoff from the site.” The other statements appear in the EIR’s ensuing discussion of the project design features and other conditions imposed to reduce runoff. As to fuel modification zones and Aliso Creek, the EIR says the best management practices and irrigation practices “will be implemented” and incorporated in the final water quality management program to reduce runoff. The EIR also requires the developer to prepare CC&R’s that impose water quality restrictions on homeowner. Endangered Habitats does not find fault with the content of the CC&R’s, but with the fact that it does not have to be prepared until some unspecified time in the future.

C

Endangered Habitats also faults the EIR for not identifying the traffic increase on Santiago Canyon Road as a significant environmental effect, and either adopting mitigation measures or finding mitigation is infeasible. We agree.

As we have explained, the EIR’s conclusion of no significant impact on Santiago Canyon Road cannot be sustained, since it sidesteps the HCM method of analysis required by the general plan. Nor can we sustain the conclusion that contributions to road improvement fee programs are adequate mitigation, for there is no evidence the mitigation will take place. So the EIR is inadequate for failing to identify and discuss the impact of increased traffic on Santiago Canyon Road.

D

Finally, Endangered Habitats argues the EIR should have analyzed the impact of the balancing provision. The argument goes like this: Because the provision allows trading-off regulations, it will have an impact on the environment as some regulations are forfeited in favor of others.

We need not reach this point. It is moot in light of our holding that the balancing provision is inconsistent with the general plan, which will require us to direct issuance of the writ of mandate to set it aside.

In fine, approval of this project was flawed. Since the project and the specific plan amendment are both inconsistent with the general plan, and the EIR is inadequate, the petitions for a writ of mandate should have been granted.

Rylaarsdam, Acting P. J., and Moore, J., concurred.

Petitions for a rehearing were denied July 29, 2005, and the petition of real party in interest for review by the Supreme Court was denied October 12, 2005.