Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
CHRISTWARD MINISTRY, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.
Plaintiff Christward Ministry (Christward) appeals an order determining defendant County of San Diego's (County) return to a peremptory writ of mandate was adequate. Christward contends the return was procedurally and substantively defective. Christward also appeals an order denying its motion for attorney fees under Code of Civil Procedure section 1021.5. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Christward owned a 640–acre religious retreat. Nearby the County owned and operated the San Marcos landfill.
In November 1990 the County certified an environmental impact report (EIR) for a proposed expansion of the landfill. The County also filed a notice of determination about its approval of the proposed landfill expansion and certification of the EIR.
CASE NUMBER 631783
In December 1990 in San Diego Superior Court case number 631783 Christward petitioned for mandate against the County. Christward alleged the EIR for the proposed landfill expansion was inadequate and in certifying the EIR as adequate the County did not proceed in the manner required under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and its implementing regulations.1
In July 1991 the court entered an order granting in part Christward's petition for writ of mandate. The court found the EIR inadequately evaluated the project's significant adverse impact on the area's water quality and should have provided more information about specific accountability for monitoring mitigation measures.2
In October 1991 the court issued a peremptory writ of mandate commanding the County to revise the EIR's section on surface and ground water to comply with CEQA and the Guidelines. The writ also commanded the County to prepare a mitigation monitoring plan identifying those responsible for ensuring County implementation of the mitigation measures.3
Responding to the writ of mandate, the County prepared a supplemental environmental impact report (SEIR) analyzing the proposed project's potential impacts on surface and ground water. The County also added to the mitigation monitoring program the name of the person responsible for ensuring each mitigating measure was implemented. The County circulated the draft SEIR for review to governmental agencies that had received the draft EIR.
In December 1991 the County recertified the EIR, certified the SEIR, and readopted the mitigation measures and mitigation monitoring program. The County also filed a notice of determination about its approval of the proposed landfill expansion, recertification of the EIR and certification of the SEIR.
CASE NUMBER 6474731WRIT OF MANDATE INVOLVING SEIR
In January 1992 in San Diego Superior Court case number 647473 Christward petitioned for mandate against the County. Christward alleged the County did not proceed in the manner required by law and abused its discretion in certifying the SEIR as adequate and complete.
In June 1992 after hearing, the court granted Christward's petition for mandate. The court found the SEIR to be inadequate in not studying the potential adverse impacts of the proposed primary mitigation measure designed to alleviate harm to ground water, to-wit, a clay cap and liner system.4 The court also found the SEIR did not adequately respond to public comments. The court further found the County did not comply with CEQA requirements involving recirculating the SEIR and making relevant documents available for a sufficient time for public review.
On July 24, 1992, the court entered judgment granting a peremptory writ of mandate commanding the County to vacate its certification of the EIR and the SEIR. The writ also commanded the County to prepare an adequate evaluation of the potential significant adverse impacts of the mitigation measures proposed to alleviate harm to the area's ground water; prepare adequate responses to public comments; recirculate any future EIR to all persons, agencies and entities who received the original EIR; and make relevant documents available for a sufficient time for public review. The writ required the County to file a return by August 31, 1992.
COUNTY'S RETURN TO WRIT OF MANDATE
Meanwhile, the County prepared revised responses to public comments on the SEIR and a new introduction to the revised responses. The revisions amended responses to which Christward had objected.
On July 6, 1992, the County notified persons who earlier submitted written comments on the draft SEIR that the County's Board of Supervisors at its July 14, 1992, hearing would consider certifying the SEIR with the revised responses to comments.
On July 10, 1992, the County delivered copies of the revised responses to persons who had submitted written comments on the draft SEIR.
On July 14, 1992, after a public board hearing, the County rescinded its December 1991 certification of the SEIR; restricted all trucking—for both waste disposal and clay importation—to the trucking levels analyzed without challenge in the original EIR; certified the original EIR and the SEIR with revised responses to comments; and readopted the mitigation measures and mitigation monitoring plan.5 The County also filed a notice of determination about its reapproval of the proposed landfill expansion, recertification of the EIR and certification of the SEIR as revised.
On August 3, 1992, the County filed a return to the peremptory writ of mandate. The County asserted it had limited its activities—including those associated with the proposed clay cap and liner mitigation measure—so there would be no significant adverse environmental impacts beyond those already analyzed without challenge in the original EIR and thus an adequate evaluation of the potential significant adverse impacts of such mitigation measure had been prepared. The County also asserted it had prepared adequate responses to public comments; demonstrated the SEIR was circulated to all agencies which received the draft EIR and to others in accord with CEQA; and made relevant documents available for a sufficient time for public review.
Christward opposed the County's return to the writ.
On August 21, 1992, after hearing, the court determined the County's return to the writ to be adequate. In its written order the court stated the County “adequately addressed the potential impacts of the clay cap and liner mitigation measure by passing a Resolution ․ which limits the scope of any impacts to parameters already defined within the original Environmental Impact Report. [¶] Since this Resolution deals with information already analyzed and commented upon, it does not constitute ‘significant, new information’ which would necessitate a recirculation to other public agencies for comment. (Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 821–822, 176 Cal.Rptr. 342.)”
Christward appeals the order determining the County's return to the writ to be adequate.6
CHRISTWARD'S MOTION FOR ATTORNEY FEES
On August 4, 1992, in case number 647473 Christward filed a motion for $15,360 attorney fees under Code of Civil Procedure section 1021.5. The County opposed Christward's motion.
On August 25, 1992, after hearing, the court denied Christward's motion for attorney fees.
Christward appeals the order denying attorney fees.
DISCUSSIONACOUNTY'S RETURN TO WRIT OF MANDATE
Characterizing the County's return to the writ of mandate as an impermissible post hoc rationalization for actions already taken in violation of CEQA, Christward contends the superior court erred in finding the County satisfied CEQA requirements by purporting to remedy a defective SEIR through a procedure which effectively insulated the assertedly “curative new information” from any meaningful public review. However, we conclude the court properly determined the County's return to the writ to be adequate.
“The EIR requirement is at the heart of CEQA. [Citation.] An EIR is ‘ “an informational document,” the purpose of which “is to provide public agencies and the public in general with detailed information about the effect which 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.” ․’ [Citations.]” (Sutter Sensible Planning, Inc. v. Board of Supervisors, supra, 122 Cal.App.3d at p. 819, 176 Cal.Rptr. 342.) “Comments are an integral part of the EIR. [Citation.]” (Id. at p. 820, 176 Cal.Rptr. 342.)
The writ of mandate commanded the County to prepare “an adequate evaluation of the potential significant adverse impacts of the mitigation measures proposed to alleviate harm to the groundwater in the area․” As noted, in determining the County's return to the writ of mandate to be satisfactory, the superior court found the SEIR as revised adequately addressed the potential impacts of the clay cap and liner mitigation measure by limiting such impacts to those already analyzed in the original EIR.
Christward contends the County's return did not comply with the writ's commands or with CEQA's procedural and substantive requirements that the County provide an adequate analysis of the adverse impacts of the proposed mitigation measure. Christward asserts the superior court should have concluded the County did not prepare an adequate analysis of the potential impacts of the clay cap and liner system. Christward also asserts the court erred in not requiring the County to recirculate the revised SEIR for public review and comment to those agencies and persons consulted about the original EIR. According to Christward, the County simply labeled its brief discussion of the clay cap and liner as “amended responses” to comments received earlier about the SEIR and claimed it was not required to circulate such responses for public and agency review. However, we conclude the court properly determined the County's return to be adequate as complying with the requirements of the writ and CEQA.
Christward contends the superior court should have found the County's return to the writ to be substantively inadequate because the County's revised responses assertedly provided only minimal information about the proposed clay cap and liner mitigation measure. Christward contends the County sought to substitute a limit on the total number of trucks entering the landfill daily for the CEQA-required analysis of potential environmental impacts of the clay cap and liner mitigation measure. Citing the court's statements in granting the writ, Christward asserts the revised responses did not contain any information about the identity of the anticipated source of the clay, the impact of clay removal on the source site, the proposed routes for hauling clay to the landfill, the hauling distance, or the effect of such matters on traffic, air pollution, noise, energy and cost.7 Christward argues the County should be required to study the related concerns of the routes and distances the clay trucks would travel to determine impacts on traffic congestion, air pollution, noise, energy consumption and relative cost. However, preparation and circulation of another EIR on the impacts of trucking clay would have simply repeated the unchallenged trucking analysis in the original EIR. Thus, the court properly determined the County's treatment of the mitigation measure complied with CEQA.
Preliminarily, we note CEQA did not require the impacts of the mitigation measure receive the same level of analysis as required for the impacts of the project itself. (Guidelines, § 15126, subd. (c).) 8 We also note “[i]t is doubtful, to say the least, whether or not there can be an effective appeal from a determination by a trial court that a peremptory writ of mandate issued by it has been complied with. Certainly, the court issuing the writ is best able to judge if it is satisfied with the performance as reported.” (Cosgrove v. County of Sacramento (1967) 252 Cal.App.2d 45, 49, 59 Cal.Rptr. 919.) At the hearing here on the adequacy of the County's return to the writ of mandate, the superior court stated “the main problem with the discussion of the mitigation measure was the lack of any ․ indication as to how many truck loads of clay were going to be hauling clay into the ․ area, and what effect those would have, so I think the Court's order basically addressed itself to that, and not really to any other issue with regard to mitigation, so when the County says in its resolution ․ that they are going to limit the number of trucks, they're not going to go back and do another study and circulate it as to what the impact of ‘X’ trucks is going to be. They're going to limit it to the number of trucks set forth in the original E.I.R. Then it seems to me that that problem is gone.” Thus, the issuing court was satisfied the County complied with the writ and with CEQA. (Ibid.)
Further, the record supports the superior court's determination the truck trip limit and the revised responses demonstrated the County complied with CEQA. The original EIR analyzed the adverse environmental impacts of trucking to the landfill. The County's July 14, 1992, resolution limited all waste disposal and landfill expansion trucking activities—including implementation of the clay cap and liner mitigation measure—so they would not exceed the level of trucking activity analyzed, circulated and certified without challenge in the original EIR. By so limiting the number of truck trips to the landfill, the County ensured there were no environmental impacts beyond those analyzed in the original EIR.9
The original EIR analyzed the worst-case noise, air pollution, traffic and energy impacts of waste trucks going to the landfill based on the actual number of vehicles entering the landfill in October 1988 plus an assumed 5 percent yearly increase in traffic volume. From 1988 until 1992 fewer large trucks actually entered the landfill than projected and analyzed in the original EIR. Based upon the downward trend in the amount of waste hauled to the landfill, large truck traffic was expected to be well below the numbers projected and analyzed in the original EIR. Thus, the original EIR analysis about truck impacts could subsume the additional truck trips necessary to import clay for the clay cap and liner mitigation measure. Further, the record indicated the County could implement the mitigation measure without exceeding the trucking limitation. In sum, the trucking impacts associated with the mitigation measure were well within the levels analyzed in the original EIR.
The record also demonstrates the original EIR's qualitative analysis was sufficiently broad to include the clay importation trucking impacts. The impacts of a large truck hauling clay were similar to those of a large truck hauling solid waste. Clay imported to the landfill was likely to come from the same area as waste hauled there. The clay transportation routes were likely to be the same routes analyzed for hauling waste.
Without merit is Christward's contention the truck trip limitation did not constitute an adequate substitute for an analysis of the impacts of clay importation since there was no “information concerning impacts on the source site from clay removal.” As noted in the County's revised responses, environmental impacts at clay sources were addressed by previous CEQA documents, were exempt from CEQA or would be subject to CEQA review before use.10 Also meritless is Christward's contention the County's return was inadequate as not discussing the costs of the clay cap and liner mitigation measure. Although the court's statement of decision in granting the writ referred to cost, the writ itself did not mention cost. Further, Christward has not alerted us to anything in CEQA requiring an analysis of the costs of mitigation measures. In any event, the record indicates the cost of the landfill expansion including the clay cost was less than the cost of closing the landfill and diverting solid waste to other landfills.
In sum, the superior court could properly conclude the truck trip limitation and the revised responses demonstrated compliance with CEQA and the writ.
Christward contends in determining the County's return to be adequate, the superior court erred in not requiring recirculation for public and agency comment of the information contained in the revised responses to comments. Christward asserts recirculation was imperative because the new information the County included in the revised SEIR related to the potential impacts of the primary mitigation measure proposed to alleviate harm to surface and ground water in the area. Asserting the mere label “amended responses” did not resolve the issue whether the information was of sufficient importance to require recirculation for public review and comment, Christward contends the superior court improperly accepted the County's claim its limitation on total truck trips—hauling either trash or clay—would result in no adverse impacts not studied in the original EIR and thus improperly concluded the return to the writ presented no significant information requiring recirculation. Christward also contends the County's claims about the truck trip limitation “have not been exposed to the salutary effects of public and agency review and comment.” However, the SEIR with revised responses to comments did not contain significant new information requiring circulation of the document for public review and comment.
Christward contends the revised SEIR contained significant new information about the potential adverse impacts of the proposed mitigation measure and thus should have been circulated for public and agency review and comment. Specifically, Christward asserts such “significant” new information included an abbreviated analysis of the clay cap and liner mitigation measure which had previously been omitted and a limitation on truck traffic. However, CEQA requires recirculation of an EIR only if “significant” new information is added to the document after public review and before final certification. (Sutter Sensible Planning, Inc. v. Board of Supervisors, supra, 122 Cal.App.3d at p. 823, 176 Cal.Rptr. 342; § 21092.1.) 11 Recirculation is not required where, as here, the new information merely clarifies, amplifies or makes insignificant modifications to the EIR. (Sutter Sensible Planning, Inc. v. Board of Supervisors, supra, at pp. 822–823, 176 Cal.Rptr. 342.) As noted, the superior court concluded the County's truck limitation resolution involved information “already analyzed and commented upon” and thus did not constitute “significant, new information” requiring recirculation for public review and comment. The court's conclusion was proper.12
The SEIR discussed the clay cap and liner system mitigation measure. The comments and responses in the SEIR also discussed that mitigation measure. The revised responses' information about the clay cap and liner system including soil importation merely clarified the nature of the mitigation measure and indicated the County would operate the expansion project within the volume of large truck traffic projected and analyzed in the original EIR. The revised responses did not contain a new analysis of the impacts of large trucks going to the landfill but instead simply explained that with the truck limitation the combination of large trucks hauling clay and solid waste would not exceed the total number of large truck trips previously analyzed. We have not been alerted to anything in CEQA requiring the County to circulate responses to public comments on a previously circulated environmental analysis. Further, the comments and responses became part of the final environmental impact document. (Guidelines, § 15132.) The County was not required to provide an opportunity for review and comment on the final document before approving the project. (Guidelines, § 15089, subd. (b).) 13
Christward also meritlessly asserts the superior court erred in not requiring the County to comply with the writ's express language involving recirculation. In its statement of decision granting the writ of mandate, the superior court found the “[County] failed to comply with CEQA concerning recirculation of the SEIR and making relevant documents available for a sufficient time for public review.” The writ commanded the County to vacate its resolution certifying the EIR and the SEIR, to recirculate “any future environmental impact report to all persons, agencies and entities who received the original environmental impact report,” and to make “relevant documents available for a sufficient time for public review.” However, the writ did not require preparation of a new EIR and the County did not prepare a new EIR. Instead, as the issuing court properly found, the County complied with the writ by preparing revised responses to comments and imposing a limitation on the number of large truck trips to the landfill.
In responding to comments on the draft SEIR, the County referred to a document entitled Response to Technical Order (RTO) and its appendices. In its statement of decision granting the writ of mandate, the court found the County did not make the RTO available for public review although the RTO was incorporated by reference into the SEIR. The writ commanded the County to make “relevant” documents available for a sufficient time for public review. The revised SEIR deleted references to the RTO.14 In determining the County's return to the writ to be adequate, the superior court implicitly concluded the RTO no longer constituted a “relevant” document required to be made available for a sufficient time for public review.
Christward contends the superior court erred in permitting the County to delete from the SEIR information about the RTO instead of making the RTO available for public review for a sufficient time. Christward asserts the County deleted critical information from the SEIR to avoid the need to make such information available for a sufficient time for public review.15 Christward also asserts the County's deletion of the RTO from the SEIR's revised responses to public comments rendered numerous responses inadequate as conclusionary and unsupported by factual information. Christward claims after deletion of references to the RTO the only remaining accurate description of the clay cap and liner was in the revised responses which were never circulated for public review and comment. Thus, according to Christward, there has been no public review and comment of the most critical mitigation measure intended to alleviate potential harm to ground water in the area. However, although the revised SEIR deleted reference to the RTO, the superior court could properly conclude the County's return to the writ was adequate.
The RTO was not an integral part of the draft SEIR's water impact analysis and not necessary to such analysis. The SEIR's water impact analysis was independent of the RTO and based only on the data in documents listed in the SEIR. The County corrected any problem in not earlier making the RTO available for a sufficient time for public review and comment by deleting reference to the RTO in the revised comments. Thus, the RTO was no longer a “relevant document” required to be made available for public review. Further, the County was not required to respond to every comment submitted, but instead only to those raising significant environmental questions. (Browning–Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 862, 226 Cal.Rptr. 575.) Where, as here, “[t]he responses as a whole evince good faith and a reasoned analysis,” they adequately serve the disclosure purpose of the EIR process even though they may not be “exhaustive or thorough in some specific respects.” (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 686, 188 Cal.Rptr. 233.) We also note the record indicates as early as December 6, 1991, the RTO was available to the public.
In sum, the superior court properly determined the County's return to the writ of mandate was adequate.
Christward unsuccessfully sought attorney fees under Code of Civil Procedure section 1021.5. The superior court denied Christward's request primarily because it believed “the benefit here was primarily to the landowners adjoining the landfill and not necessarily to the public in general․” The court identified such benefit as a potential enhancement of property value.
Christward contends the superior court erred in not applying the proper standard of review in ruling on its motion for attorney fees. Specifically, Christward asserts its property interests did not constitute grounds for denying an award of attorney fees under the private attorney general doctrine.16 Asserting it had no financial stake or incentive to pursue this action, Christward also contends its legal victory in obtaining the writ of mandate significantly transcended its personal interest. However, we conclude the court properly declined to award Christward attorney fees.
Code of Civil Procedure section 1021.5 permits a court to award attorney fees under a private attorney general theory. (Baggett v. Gates (1982) 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.) The statute provides in relevant part: “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Code Civ.Proc., § 1021.5.) The trial court has discretionary power under Code of Civil Procedure section 1021.5 and its decision will be reversed only for prejudicial abuse of such discretion. (Baggett v. Gates, supra, at pp. 142–143, 185 Cal.Rptr. 232, 649 P.2d 874; Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th at p. 49, 16 Cal.Rptr.2d 435.)
In making a decision under Code of Civil Procedure section 1021.5, the trial court “must realistically assess the litigation and determine from a practical perspective whether the action: ‘(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. [Citations.]’ [Citation.]” (Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th at pp. 49–50, 16 Cal.Rptr.2d 435.) “The public always derives a ‘benefit’ when illegal private or public conduct is rectified, but in order to determine whether a ‘significant’ benefit has been conferred, the court must determine both the significance of the benefit and the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances of the gains which have resulted in the particular case. [Citation.]” (Id. at p. 50, 16 Cal.Rptr.2d 435.)
Here the benefit of the case was the writ of mandate's requirement the County adequately evaluate potential significant adverse impacts of the clay cap and liner system mitigation measure proposed to alleviate harm to the area's ground water, specifically with respect to the effect of the numbers of trucks hauling clay to the landfill. However, under the circumstances here Christward's obtaining such writ—resulting in preparation of revised responses to some public comments—did not confer a significant public benefit. (Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th at p. 50, 16 Cal.Rptr.2d 435.) 17 Further, Christward's financial burden did not exceed its personal stake in the case. (Ibid.)
In Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th 31, 16 Cal.Rptr.2d 435, we noted that the trial court in denying attorney fees stated that while “ ‘it's perhaps true that public interest is being vindicated by this writ,’ Christward's ‘private interests ․ with reference to the use of their property is the real basis for [the] action ․’ ” (Id. at p. 49, 16 Cal.Rptr.2d 435.) We concluded “we cannot quarrel with the reasonableness of the court's assessment of Christward's private interest in the litigation.” (Id. at p. 50, 16 Cal.Rptr.2d 435.) Similarly, the trial court here acted within its discretion in denying Christward's motion for attorney fees.
The orders are affirmed.
1. All statutory references are to the Public Resources Code unless otherwise specified.References to “Guidelines” are to the State CEQA Guidelines which implement the provisions of CEQA. (Cal.Code Regs., tit. 14, § 15000 et seq.)
2. The written order granting Christward's petition for mandate provided: “The court is of the view that the significant defect in this EIR is the failure to adequately address the issue of water quality.”
3. In December 1991 in case number 631783 Christward appealed the judgment insofar as it denied portions of the relief requested. We affirmed the judgment. (Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, 16 Cal.Rptr.2d 435.)
4. The court noted: “The primary mitigation measure regarding groundwater at the landfill is the proposed installation of a one-foot clay cap over the existing landfill to serve as an impermeable liner to prevent migration of leachate to groundwater.”
5. In its resolution of July 14, 1992, the County limited “the total number of waste disposal truck trips to the Landfill plus clay importation truck trips for landfill expansion, which limit applies to heavy trucks and not to pickups, to an average of 1,326 trips per day (July 1992,) calculated on a two-week basis. Such limit to be increased monthly at an annual rate of 5%.”The County's revised responses to public comments stated: “The impacts of large trucks hauling clay are equivalent to impacts of large trucks hauling solid waste. There would be no net increase in trucks coming to the landfill from the level projected in the original EIR.”The revised responses also provided: “The clay for the cap and daily and intermediate cover will be transported in large trucks. Importation and placement of the clay cap is anticipated to take approximately 2 to 4 months. By limiting the waste and clay truck trips to the number analyzed in the original EIR, no additional impacts beyond those analyzed in the original EIR will be caused by the clay truck trips. After the clay cap is completed and the expansion is in operation, approximately 50 to 75 clay truck trips per day will be needed to provide clay materials for use in daily and intermediate cover. The number of clay truck trips is expected to be well within original EIR truck trip limits over the anticipated 8–year life of the landfill. [¶] The County will limit its total large truck trips (both solid waste and clay), associated with the landfill expansion project, to the number analyzed in the original EIR to ensure that no additional adverse impacts to the environment result beyond that already discussed in the original EIR.”
6. We summarily denied Christward's petition for an extraordinary writ to vacate the superior court's ruling the County's return was adequate. (Christward Ministry v. Superior Court (Sept. 9, 1992) D017392 [nonpub. opn.].)On September 24, 1992, in case number 647473 the superior court entered an order discharging the peremptory writ of mandate.
7. In its statement of decision granting the writ of mandate, the superior court wrote: “The SEIR contains no information about where the clay will come from and how it will get to the landfill. Furthermore, there is no analysis of cost as related to other alternative measures.”
8. Section 15126, subdivision (c) of the Guidelines provides: “If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed. [Citation.]”
9. Christward does not dispute the adequacy of the original EIR's analysis of the noise, air pollution, traffic or energy impacts of trucks.
10. The revised responses explained the clay cap and liner system including the amount of clay needed, the amount of clay stockpiled on the site, the number of truck trips needed to import clay for intermediate layers, and the expected sources of clay.
11. Section 21092.1 provides: “When significant new information is added to an environmental impact report after notice has been given pursuant to Section 21092 and consultation has occurred pursuant to Sections 21104 and 21153, but prior to certification, the public agency shall give notice again pursuant to Section 21092, and consult again pursuant to Sections 21104 and 21153 before certifying the environmental impact report.”
12. Sutter Sensible Planning, Inc. v. Board of Supervisors, supra, 122 Cal.App.3d 813, 176 Cal.Rptr. 342, involving an EIR for a proposed tomato processing plant, is distinguishable. There a revised final EIR contained new information including “additional details regarding the quantities of pesticide residues to be expected in the tomato waste water, a more elaborate discussion of ground water availability and the projected impact of the plant on the water table, updated figures on the amount of motor vehicle traffic in the vicinity of the plant and a discussion of the effect on rail traffic and new figures on the proposed method of disposing of waste water, substituting Department of Water Resources estimates of evapo-transpiration potentials of pasture land in the Sacramento Valley during the tomato processing season for figures used in the previous EIR which were repudiated by their purported author.” (Id. at pp. 817–818, 176 Cal.Rptr. 342.) Such information involved the basic content of the analysis of the environmental impacts of the processing plant itself. Here the SEIR with revised responses involved analysis of a proposed mitigation measure rather than the landfill expansion project itself.
13. The discussion following section 15089, subdivision (b) of the Guidelines provides in part: “In order to save time, the CEQA process provides only a once-around review system. It requires public review only at the draft EIR stage. The final EIR can be submitted directly to the decision-making body of an agency for consideration.”In any event, we note the County on July 10, 1992, delivered copies of the revised responses to persons who had commented on the draft SEIR.
14. The revised SEIR provided in part: “These amended responses to public comments do not refer to the Response to Technical Order 91–25 (the ‘RTO’), and its Appendices, A through G. The RTO was an analysis of the same water quality data analyzed in the SEIR, but was performed by the County in parallel with the SEIR water quality analysis to address the specific permitting concerns of the Regional Water Quality Control Board (RWQCB). The RTO was not relied on in preparing the draft SEIR that was circulated to regulatory agencies and the public, and it was not necessary to the analysis of the draft SEIR.“In the interest of responding most fully to public comments regarding the SEIR's water quality analysis, the County referred to the RTO in many of its November responses. Unfortunately, these references created the misimpression among some that the RTO itself was used to perform the water quality analysis in the SEIR. (If it had been so used, the RTO would had to have been made available for review during the entire public review period.) However, this was not the case. The SEIR's water quality analysis is an independent analysis that stands on its own. Previous references in the record to the RTO (which corroborated the conclusions of the SEIR's water quality analysis) were made only in response to public comments and to amplify the information provided in those responses.“The County has eliminated all references to the RTO in these amended responses to public comments in order to avoid the suggestion that the SEIR analysis was based on additional, unreviewed information. However, one could argue that this has the somewhat ironic effect of providing less information in response to public comments than had previously been provided. Accordingly, the County will again make the RTO available for review.” (Emphasis in original.)
15. In its statement of decision granting the writ, the superior court noted the County admitted “that documents incorporated by reference into the SEIR were not provided for review until the end of the notice period. [The County] contends that although this is not the preferred method, the Court should view this as simply ‘harmless error.’ This omission, however, appears to be a failure to give adequate notice as required by law. Appendices D and G, which contained data concerning groundwater, were made available only three working days before the end of the comment period. [Citation.] [The County] also failed to make the Response to Technical Order available for public review even though it was incorporated into the SEIR.”
16. In Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th 31, 16 Cal.Rptr.2d 435, in affirming the superior court's denial of attorney fees to Christward in case number 631783, we rejected an identical contention by Christward. (Id. at pp. 49–50, 16 Cal.Rptr.2d 435.)
17. In Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th 31, 16 Cal.Rptr.2d 435, we stated: “Before the hearing in this case, County already was under notice from the regional water quality control board that it must prepare a more detailed analysis of the water impacts of the proposed Landfill expansion. Thus, it was reasonable to conclude Christward's success in obtaining the judgment with respect to the water impacts did not itself confer a public benefit.” (Id. at p. 50, 16 Cal.Rptr.2d 435.)
KREMER, Presiding Justice.
BENKE and NARES, JJ., concur.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. D017589.
Decided: July 16, 1993
Court: Court of Appeal, Fourth District, Division 1, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
FindLaw for Legal Professionals
Search our directory by legal issue
Enter information in one or both fields (Required)