WEST DAVIS COMMUNITY ASSOCIATION v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

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Court of Appeal, First District, Division 4, California.

WEST DAVIS COMMUNITY ASSOCIATION, et al., Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Respondent.

No. A052284.

Decided: October 31, 1991

John C. Gabrielli,Harriman & Gabrielli, A Professional Corp., Davis, for appellants. E. Clement Shute, Jr., Elizabeth M. Dodd, Shute, Mihaly & Weinberger, San Francisco, for respondent.

Petitioners and appellants West Davis Community Association, Bruce T. Maeda, and Larry J. Bidinian (appellants) appeal from a judgment denying their first amended petition for a writ of mandate and injunctive relief.

Appellant's first amended petition sought to vacate and restrain implementation of a Long Range Development Plan (LRDP) for the University of California at Davis (UCD), proposed and approved by respondent Regents of the University of California (respondent), on the ground that the Environmental Impact Report (EIR) failed to mention a portion of the UCD campus known as the Laboratory for Energy–Related Health Research (LEHR).

The superior court's reasons for denying the petition were failure to exhaust administrative remedies and that the LRDP EIR properly excluded an analysis of the LEHR site.   Appellant contends that neither reason is supported by the law or facts.   We agree and reverse.

I. Statement of the Facts and Proceedings

A. LRDP, LEHR, and EIR

UCD was established in 1906 and has steadily expanded ever since.   In 1956, a plan was prepared to accommodate growth from 2,000 to 5,000 students.   In 1958 LEHR was created by the United States Department of Energy (DOE) on ground leased from UCD.   The mission of LEHR was to test the effects of atmospheric nuclear bomb tests on the human food chain by feeding beagle dogs various levels of radioactive strontium 90 with their regular food and scientifically observing the effects in meticulous detail.   Radioactive waste from the LEHR project and from other parts of the UCD campus, along with other hazardous waste, was buried on the LEHR site.

LEHR was located on a 15–acre site at the southern edge of the South Campus District of UCD.   It is over one-half mile south of, and is separated from the main or central campus by Interstate Highway 80 (I–80), open agricultural fields, and several support facilities.   The main campus covers 840 acres, the entire southern campus covers 443 acres, and the whole of UCD covers 3600 acres.   We have appended to this opinion a map which designates the various components of UCD.

In 1963, a new plan was prepared to accommodate anticipated growth of the UCD student population from 5,000 to 15,000.   LEHR began to close down in the late 1980's.   The last of the 865 beagles used in the study died at the age of 181/212 in 1986 and the planned phase-out began in 1987.   An important part of the phase out is the removal of the hazardous wastes, including 12,000 gallons of radioactive “dog sludge.”   A map of LEHR is appended to this opinion.

On August 4, 1988, a preliminary administrative draft LRDP was prepared for UCD.   On October 25, 1988, an administrative draft of the LRDP for UCD was prepared.   On April 17, 1989, the LRDP and draft EIR for same were prepared.   The final EIR for the LRDP is dated July, 1989.   In November, 1989, DOE prepared a draft “Environmental Restoration & Waste Management Site Specific Plan for [LEHR]”.   The plan states that the project is to be carried out from 1990 to 1995 and that “UCD intends to ․ use the facilities for non–DOE sponsored radiological research”.   Preparation of an EIR for LEHR by UCD and DOE was scheduled to begin in February 1990, and to be completed by the end of 1990.

The 1989 LRDP was designed to guide physical development of the UCD campus through the year 2005–2006 and to enable the campus to expand its current enrollment of 20,280 students to an optimal level of 26,280.   LEHR is not mentioned in the LRDP or EIR.

Regarding at least a portion of the south campus, the LRDP states that it “is situated in relatively close proximity to the central campus.   ¶  A planning and feasibility study to determine the best use for this site will be conducted after completion of the LRDP.   A range of uses will be examined including:  (1) continuing agricultural field research;  (2) organized research units;  (3) student housing;  (4) Equestrian Center;  (5) academic and support facilities;  (6) research park;  (7) parking;  (8) a shopping mall/retail/office complex;  and (9) some combination of the above.”   If necessary an EIR will also be prepared.

B. Administrative Proceedings

Full hearings with ample notice were held regarding the contents of the LRDP and its EIR.   The city of Davis submitted a written list of 12 comments.   One of its comments was:  “The LRDP Land Use Map on pg. 43 of the Plan designates the South Campus District as ‘Teaching/Research Fields', but the text on pg. 46 indicates a range of potential uses which would be inconsistent with this designation, e.g․  If these uses are to continue to be specified as possible uses, the EIR should include analysis of the potential impacts of these uses as well as others that have been considered.   It is not valid to omit this area from any environmental review at this time any more than other areas of the Plan, as they all are subject to subsequent environmental assessment.”

A memorandum of understanding between Davis and UCD includes the following:  “The City and UCD agree that the LRDP does not propose a research park or a shopping center/retail/office complex for the south campus.   The City and UCD agree that any study of this area must recognize that development of a research park or a shopping/center/retail/office complex in the south campus was not envisioned by, and would be inconsistent with, the City's General Plan, and would have major impacts on the City.”

Appellants Maeda and Bidinian objected to the approval of the LRDP orally at the public hearing.   Bidinian also objected in writing.   LEHR was not mentioned in the notices concerning the LRDP and its EIR.   Between October 2, 1987, and August 22, 1990, UCD issued several press releases regarding LEHR and numerous newspaper articles were written based on the press releases.   The articles did not mention the LRDP.

II. Exhaustion of Administrative Remedies

 Appellants contend that their legal action is not barred by the doctrine of failure to exhaust administrative remedies.

The law governing the instant case is found at Public Resources Code section 21000 et seq. and is sometimes referred to as the California Environmental Quality Act, or CEQA.

Public Resources Code section 21177 provides in pertinent part:  “(a) No action may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person.   ¶ (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing.”

The interrelationship between the two subsections of the statute was clarified in Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894, 236 Cal.Rptr. 794:  “Although it is true the plaintiff need not have personally raised the issue [citation], the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.”  (Emphasis in original.)

An objection that a single project was improperly divided into two separate projects with two separate EIR's was sufficiently raised at the administrative level by an objection that one of the EIR's failed to consider the cumulative effects of the project.  (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 162–163, 217 Cal.Rptr. 893.)

As we have noted, the City of Davis at the administrative hearing in the instant case raised the issue of the EIR's failure to discuss the south campus.   Since LEHR was a part of the south campus, the City's objection meets one requirement of the exhaustion of administrative remedies statute.   The other requirement is met because appellants objected to the approval of the project.

 Moreover, Public Resources Code section 21177, subdivision (e) provides that a party is not required to exhaust administrative remedies “when the public agency failed to give the notice required by law”.   Herein, the notice of hearings on the LRDP EIR was not sufficient because it did not serve to notify the public that LEHR, an area of land with hazardous wastes, formed a part of UCD.  (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1150–1151, 249 Cal.Rptr. 439.)   The newspaper articles about LEHR are not a valid substitute for the required notice.

III. The EIR

 Appellants contend that the EIR was inadequate because it did not discuss LEHR and its relationship to the LRDP.

Public Resources Code section 21083 provides in pertinent part:  “The Office of Planning and Research shall prepare and develop proposed guidelines for the implementation of this division by the public agencies․

“The guidelines shall specifically include criteria for public agencies to follow in determining whether or not a proposed project may have a ‘significant effect on the environment.’   The criteria shall require a finding that a project may have a ‘significant effect on the environment’ if any of the following conditions exist:

“(b) The possible effects of a project are individually limited but cumulatively considerable.   As used in this subdivision, ‘cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.

“(c) The environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.”

“[C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA.  [Citation.]”  (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2, 253 Cal.Rptr. 426, 764 P.2d 278.)   The Guidelines are found in Barclays California Code of Regulations, title 14.

Guidelines section 15130 provides:  “(a) Cumulative impacts shall be discussed when they are significant.   ¶ (b) ․  The following elements are necessary to an adequate discussion of cumulative impacts:

“(1) Either:

“(A) A list of past, present, and reasonably anticipated future projects producing related or cumulative impacts, including those projects outside the control of the agency, or

“(B) A summary of projections contained in an adopted general plan or related planning document which is designed to evaluate regional or area-wide conditions.   Any such planning document shall be referenced and made available to the public at a location specified by the lead agency;

“(2) A summary of the expected environmental effects to be produced by those projects with specific reference to additional information stating where that information is available, and

“(3) A reasonable analysis of the cumulative impacts of the relevant projects.   An EIR shall examine reasonable options for mitigating or avoiding any significant cumulative effects of a proposed project.”

Guidelines section 15144 provides:  “Drafting an EIR ․ necessarily involves some degree of forecasting.   While forseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.”

Several cases have also attempted to define what are the cumulative effects of a given project which must be discussed in an EIR.   In Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at 396, 253 Cal.Rptr. 426, 764 P.2d 278, the supreme court held:  “an EIR must include an analysis of the environmental effects of future expansion or other action if:  (1) it is a reasonably forseeable consequence of the initial project;  and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.   Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project.”

City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1452, 263 Cal.Rptr. 340, summarized the rules developed by several authorities as follows:  “Of particular importance here, CEQA mandates ․ that environmental considerations do not become submerged by chopping a large project into many little ones—each with a ․ potential impact on the environment—which cumulatively may have disastrous consequences.   CEQA attempts to avoid this result by defining the term project broadly.   Project means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately․   There exists a real danger in the filing of separate environmental documents for the same project because consideration of the cumulative impact on the environment may never occur.”  (Citations and quotations omitted.)

“Related projects currently under environmental review unequivocally qualify as probable future projects to be considered in a cumulative analysis.  [Citation.]   In addition, even projects anticipated beyond the near future should be analyzed for their cumulative effect.  [Citation.]”   (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, supra, 172 Cal.App.3d at 168, 217 Cal.Rptr. 893.)

“ ‘[W]hatever is required to be considered in an EIR must be in that formal report;  what any official might have known from other writings or oral presentations cannot supply what is lacking in the report.’  [Citation.]”   (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831, 173 Cal.Rptr. 602.)

“Responsibility for a project cannot be avoided merely by limiting the title or description of the project.”  (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1025, 192 Cal.Rptr. 325.)   Neither can the requirement of one comprehensive EIR be avoided by dividing one project into two parts under the domain of two different agencies.  (Ibid.)

“[T]he fact that a particular development which now appears reasonably forseeable may, in fact, never occur does not release it from the EIR process.  [Citation.]   Similarly, the fact that future development may take several forms does not excuse environmental review.”  (City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1338, 232 Cal.Rptr. 507.)

The above rules were applied to facts similar to those herein as follows:

In Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397, 151 Cal.Rptr. 866, an EIR was prepared regarding an application for a conditional use permit to drill a single exploratory oil and gas well in an area which embraced limited gas and oil operations, but was adjacent to a major oil field.   The project site was also a wildlife habitat.  (Id. at pp. 402–403, 151 Cal.Rptr. 866.)   The court held that the EIR was deficient because it did not make adequate reference to other existing or planned drilling in the area (Id. at p. 411, 151 Cal.Rptr. 866) or to “the environmental impacts associated with an oil pipeline contemplated as an addition to the project.”   (Id. at pp. 414–415, 151 Cal.Rptr. 866.)

Pistoresi v. City of Madera (1982) 138 Cal.App.3d 284, 188 Cal.Rptr. 136, held that an EIR was necessary because the proposed housing development was immediately west of agricultural land using chemicals and insecticides.

In Rural Landowners Assn. v. City Council, supra, 143 Cal.App.3d 1013, 192 Cal.Rptr. 325, the “draft EIR discussed the Johnson Ranch general plan amendment and rezoning as part of an area-wide report (244 acres), but did not consider either the Tandy Ranch proposal or the issue of annexation.”   Both ranches seem to be a part of the same plot of prime agricultural land.  (Id. at p. 1017, 192 Cal.Rptr. 325.)   The court appeared to hold that the EIR should have also discussed the Tandy ranch and annexation since annexation and the Johnson–Tandy development were “clearly interconnected”.  (Id. at p. 1024 and fn. 12, 192 Cal.Rptr. 325.)

San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 198 Cal.Rptr. 634, held that certain EIR's for the construction of high-rise office buildings in downtown San Francisco were deficient because they did not discuss other proposed buildings in the downtown area.

In Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, supra, 172 Cal.App.3d at p. 167, 217 Cal.Rptr. 893, the court held that the requirements of CEQA could not be avoided by the device of treating the development of one shopping center as two separate projects.   Further, “defendant should also consider the reasonably forseeable future projects, if any, that will be added in the shopping center area.”  (Id. at p. 168, 217 Cal.Rptr. 893.)   Such projects “include the development of three of the five lots which will not initially be developed with the proposed shopping center, but ‘will eventually be developed with satellite buildings ․’ and the approximately 265 single-family dwelling units ‘planned for’ north of the shopping center.”  (Id. at p. 169, 217 Cal.Rptr. 893.)

Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 222 Cal.Rptr. 247, involved the expansion and modification of an oil refinery.   The EIR was found to be deficient because it did not discuss the effects of offshore emissions of polluted air on air quality in the coastal areas.

In Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 253 Cal.Rptr. 426, 764 P.2d 278 the project was a move of portions of a medical school to a new building in a residential/commercial area.   One-third of the new building was available immediately, but the other two-thirds was rented and would not be vacant for approximately five years.   The EIR was found to be inadequate because it only discussed the environmental consequences of the initial relocation to the available one-third.

City of Santee v. County of San Diego, supra, 214 Cal.App.3d 1438, 263 Cal.Rptr. 340 held that the EIR for the expansion of detention facilities was inadequate because it only covered temporary measures which would alleviate overcrowding for the next seven years and did not discuss what would happen thereafter.

In the instant case the LRDP EIR purports to cover the expansion and development of UCD until the year 2006.   A substantial increase of student population and facilities to serve them will take place during that period.   During the same period hazardous wastes will be removed from LEHR and then the former LEHR facility will become a part of UCD and will be used for non–DOE sponsored radiological research.   LEHR is located on the southern campus of UCD and even the LRDP considers the entire campus—west campus, central campus and south campus—to be a single unit.   Thus, the clean-up and future use of LEHR is a part of the long-range development of UCD and should be a part of the LRDP EIR.

Respondent has violated Public Resources Code section 21083, the guidelines and the case law by dividing the UCD campus project into two separate projects with separate EIR's.   Respondent's violation is especially grievous and important because the LEHR, south campus, aspect of the development involves hazardous wastes and radiological research:  LEHR has been the dumping site for all hazardous wastes generated at UCD.   Incorporation of the LEHR site into the expanded campus is a reasonably forseeable consequence of the LRDP project and such action will be significant in that it will involve radiological research and removal of hazardous wastes.

IV. Disposition

The judgment is reversed.   Costs to appellant.

APPENDIX

PERLEY, Associate Justice.

POCHÉ, Acting P.J., and REARDON, J., concur.

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