Second Appellate District, Case No. B220008
[Los Angeles Superior Court Case No. BS118229]
In The Court of Appeal, State of California
SECOND APPELLATE DISTRICT
_________________
MARY ALTMANN
Plaintiff and Appellant,
vs.
CITY OF AGOURA HILLS CITY COUNCIL
Defendant and Respondent
_________________
Appeal From the Superior Court for the County of Los Angeles,
The Honorable Thomas I. MckNew presiding
_________________
APPELLANT’S RESPONSE TO RESPONDENT’S BRIEF
_________________
Mary Altmann, Private Attorney General
Private Attorney General
I. INTRODUCTION
Legislators and courts confirm the California Environmental Quality Act (“CEQA”) has safeguards protecting both agencies conducting business and the interests of the people of the state of California. On the agency’s side, there is a very small window of opportunity to challenge an action, and once an Environmental Impact Report (“EIR”) is certified, or deemed accurate in part by the court, case law demonstrates it is difficult to compel an agency to further environmental review. On the people’s side, the law insures the minimum standards of CEQA are met before certification.
The City failed to prove any of the previous EIR was certified or deemed approved in part by the court. The prior EIR was judged legally inaccurate and the EIR and Approvals were set aside wholly, not in part. By law, the City’s EIR is to be assumed inaccurate.[1] The City, taking out of context a sentence authored by Judge Chalfant from his 26-page ruling referring to points of that lawsuit which were unsuccessful, did not nullify his order. Judge Chalfant’s Writ of Mandate voided the EIR and approvals in their entirety. The City failed to realize this fact, and failed to perform the minimum necessary for the AVSP EIR to pass the rule of reason. The City produced no substantial evidence to support their claim Fire Hazard and Cultural Resources disclosures and mitigations were adequate.
Likewise, the City failed to fulfill the notification requirements as required by law. They did not send out Notices of Preparation, (“NOP”), failed to insure mailing to lead agencies, and failed to send out hundreds of notifications to organizations, lawyers, lawmakers, and citizens. This cafeteria approach to CEQA cannot be tolerated. It can be likened to a motorist guilty of speeding proclaiming innocence because he had a seatbelt on and was not talking on a cell phone.
1. Appellant’s Actions Are Timely
The City did not prove Fire Hazard or Cultural Resources sections of the previous EIR were adjudged adequate. It is clear in Judge Chalfant’s 26-page ruling he did not review Fire Hazard or Cultural Resources. Judge Chalfant did not use a severability clause, and he set aside the entire EIR and related approvals. As previously pointed out, CEQA law specifically states the City’s EIR is to be presumed inaccurate.
2. The Underlying Action the EIR that Certifies Must be Analyzed for the Purposes of CEQA
The City did not prove they complied with the “tiering” concept of CEQA. “Tiering” simply means the level of specificity of an EIR must be a function of the level of specificity of the project at issue. (Guidelines, § 15146.) The challenged EIR here purports to look at a project far more specific, with impacts far more foreseeable and site-specific, than an EIR for the adoption of a city’s entire general plan or comprehensive zoning ordinance. A specific plan, by definition, must “specify … in detail,” among other things, the “distribution, location, and extent of the uses of land….” (Gov. Code, § 65451, subd. (a), italics added.) Given the level of specificity inherent in a specific plan (and the AVSP in this case), and the city’s knowledge of the anticipated future physical development within the AVSP planning area, the city had to use “best efforts to find out and disclose all that it reasonably [could].” (Guidelines, § 15144; see also § 15145.) In brief, there can be no adequate, complete and good faith effort at full disclosure (see Guidelines, § 15151), without accounting for reasonably foreseeable impacts associated with anticipated development footprints, construction site planning and construction staging. In Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency et al., 98 Cal.Rptr.2d 334 the opinion of the court concluded “Designating an EIR as a program EIR also does not by itself decrease the level of analysis otherwise required in the EIR.” Clearly Fire Hazard and Cultural Resources Significant Impacts can and must be addressed and mitigated at this time, with this EIR.
Judge Chalfant specifically rejected the City’s argument in Altmann 1, stating: “The court reject’s the City’s argument that the EIR is just a first tier document to be documented in the future with second tier EIRs. A decision to tier does not excuse a government entity from CEQA’s mandate of preparing an environmental document addressing all significant effects on the environment.” (Appendix 16; p. 12 of Statement.) CEQA mandates “. . . that environmental considerations do not become submerged by chopping a large project into many little ones ‑- each with a minimal potential impact on the environment ‑- which cumulatively may have disastrous consequences.” (Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 273-274 [118 Cal.Rptr. 249, 529 P.2d 1017] 13 Cal.3d at pp. 283-284; see Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1024 [192 Cal.Rptr. 325].) The City’s determination that Significant Impacts of Fire Safety and Cultural Resources will be addressed on a piecemeal basis when the individual projects are approved is not lawful, or enforceable.
3. The City did not Prove they Complied with Noticing Requirements.
The City failed to send out NOPs in compliance with 14 Cal. Code Regs. § 15062(a) through (e). The City has no defense for this lack of due diligence. The City failed to send out Notices of Recirculation. 14 Cal. Code Regs § 15088.5(1)(3) states “…the lead agency shall send a notice of recirculation to every agency, person, or organization that commented on the prior EIR.” Here, instead of “On the Prior EIR” the City inserts “Within the first 30 days of the Draft EIR.” The City deems for themselves this is adequate because the people who commented on the prior EIR “may have no interest in receiving them” … (the notice.) (p.39 of Respondent’s brief.) This is simply not a judgment call the City is authorized to make. This woefully inadequate error was pointed out in writing and in person by Alyse Lazar, Attorney at Law. (53AR2607-09, AR2142-45.) (54AR 9857-61.)
STATEMENT OF FACTS
The Ladyface Mountain Specific Plan (“LMSP”) was approved by the City Council in 1991 as a strict policy limiting development on and around Ladyface Mountain to protect environmental and visual resources. The sentiment in forming the City of Agoura Hills, and the LMSP was to get out of the then reckless development practices of Los Angeles County and have strict development criteria. (4AR 007.)
The Agoura Village Specific Plan (“AVSP”) is the culmination of a takeover by a small group of developers of a process established by the council in the late 90’s to prepare a concept plan with design recommendations to beautify the Agoura Village area. (5AR 0142.) In 1997-1998, Agoura Village, in the same area as the LMSP, was the subject of a brainstorming effort led by the city. In 2001, the City began preparing “a plan to lead to the revitalization, the appropriate use, and the beautification of the Agoura Village area.” (6AR 0143.) The Agoura Village Strategic Plan Preliminary Scope of Work states the conclusion that a “Specific Plan is not needed to accomplish the goals of the village”. (7AR 0184-0191.) The council’s original mandate was disregarded, however, and a specific plan began developing. (8AR 0184, AR 0302‑4, AR 0319-21, AR 0322-3, AR 038-40, AR 0334, AR 0353, AR 0370-5, AR 0378-84, AR 0395, AR 0430-1, AR 0445-47, AR 0484-9.)
The Agoura Village Master Plan kickoff meeting was December 2001, which included the “stakeholders” (the owners and developers) of the vacant land in the plan area, and very few, if any citizens representing the people. (10AR 0184-0191.) This started the closed door negotiations. The “Agoura Village Strategic Action Plan” was published April 2002. (11AR 0192.) A Market Feasibility Study was created in June 2002. (12AR 0311.) On June 2002, we see a memo forming the Agoura Village subcommittee (13AR 0303), and more funds allocated for the Design Group for the Strategic Action Plan. (14AR 035.) July 2002, we see a memo about the development plans for the Ted Moore property. (15AR 0322.) In November 2002, we see more money allocated to the design group (16AR 0337) and a housing study with smaller density than was ultimately approved. (17AR 0340.) In January 2003, the Agoura Village Strategic Action Plan was presented with the first mention of amendments to existing policy. (18AR 0343, AR 0353, AR 0364-66.) In a memo dated January 29, 2003, we read that there are a number of developers who are actively working with staff in preparing applications for development on vacant parcels within the Agoura Village planning area” (19AR 0370-75).
In the memo dated February 19, 2003, we see the design group recommending zoning for each of the property owners. (20AR 6648-9.) On April 21, 2003 is the first mention we see in the record of an EIR cost summary, with one of the developers already committed to pay $45,000 of the cost (21AR 0377-9), yet the City Council has not voted on this course of action yet. On September 24, 2003 consent calendar, the City Council authorized the City’s Environmental consultant, the Planning Corporation, to prepare the EIR for implementation for the Agoura Village Strategic Plan.
The City never held a public meeting regarding their decision to finance and carry out an Agoura Village Specific Plan. No community discussion was entertained about this decision to spend City dollars to prepare a Specific Plan EIR. Missing from the record is this initial contract for the EIR, and no documentation available, and despite requests, the contract for the traffic study. One possible reason for this is that this EIR process was begun much earlier without council approval. We do know from Rincon’s proposal dated December 13, 2004, revised January 7, 2005 that a partially competed EIR had been completed for the AVSP, with about 65-70% of the draft EIR prepared by the City’s Environmental Coordinator (22AR 0603). January 26, 2005, the council was asked to enter into an agreement with Rincon consultants for an EIR. (23AR 0590.)
To recap, the Agoura Village Plan started out as a non-binding list of design recommendations for the revitalization and beautification of Agoura Village. Behind closed doors, it turned into a full blown ad hoc upzone driven by the city and developers unhappy with the LMSP and the existing general plan. In 2004, we see a letter from one of the developers asking for more specific square footage allowances than the general plan provided for (24AR 0556). In the Agoura Village Task Force Summary June 2004, it is noted the three major developments in the planning area (known as the Ted Moore project, the Symphony Project and the Cornerstone Project “Cornerstone”) had submitted development applications, and Batta Vujicich, the developer of “Cornerstone” has “paid fair share of traffic study” (25AR 0560-62), although the traffic study proposal is conspicuously missing from the record.
On or around February 10, 2005 a notice of preparation for a draft EIR (“DEIR”) was circulated. February 16, 2005, Rincon had a meeting with the developers to establish the densities and zones they desired for the AVSP, commenting that the Cornerstone did not comply with the AVSP. (26AR 0638-40.) August 29, 2005 the AVSP was released. November 18, 2005, the DEIR was released. Over the holidays 2005 was the first time the public had a look at what the City had been working on behind closed doors. Residents were shocked to find radical upzonings of a million square feet of development plus 300 homes and 45 foot-tall buildings in front of protected Lady Face Mountain. The comment period was extended, and ended January 24, 2006. April 20, 2006, the City of Agoura Hills Planning Commission had a public hearing regarding the project at issue and recommended approval to the city council.
May 24, 2006, the Agoura Hills City Council held a first public hearing regarding the project. Many citizens voiced objections to the “plan” (Admin. Rec. Vol.9 tab 141p. 2409-92). The City continued the meeting and closed the public comment portion. June 14, 2006, the council held a second public hearing, and under public pressure, the City re-opened the public comment period. (Admin. Rec.Vol. 9 tab 148 p.2624-98) After extensive public testimony, the council approved the resolutions, general plan amendments and had the first reading of the zoning changes contested herein. The City Council did offer a concession to the people at this hearing. The June 16th transcripts show that the City would monitor the roundabout, and if the roundabout did not work out, they would remove it. (AR Vol. 9 tab 148 (68) 2694-96.) June 28, 2006, the Agoura City Council held a public hearing to approve the zone change and amendment contested herein. A notice of determination was filed on June 29, 2006. Petitioner voiced objections at the planning commission level and city council level.
A petition was filed in the Superior Court of Los Angeles County July 19, 2006 challenging the above actions. April 20, 2007, a Writ of Mandate was issued by Judge James C. Chalfant of the Superior Court of California, County of Los Angeles in the case of Mary Altmann vs. City of Agoura Hills City Council Los Angeles County Superior Court, BS 1042521 (2007) (“Altmann I”) The Writ directed that the City set aside its approvals of the AVSP, its associated EIR, and zoning and General Plan amendments. Based on evidence presented to the court in that lawsuit, the Writ required that if the City intends to go forward with the AVSP, the City must prepare a new EIR. (Joint Appendix tab 16)
The City released for public comment the “Draft Revised and Recirculated EIR” May 8, 2008, closing the comment period June 23, 2008. Appellant, Fire Captain Franklin, the Native American Heritage Commission, and others commented. No NOPs were sent out, and again, the many citizens who wrote letters and commented on the previous EIR were not notified of the availability of this EIR.
June 23, 2008 the City re-circulated an “Updated Draft Revised and Recirculated EIR” for public comment. In accordance with CEQA law, the previous comments could then be ignored. The comments on significant impacts were then re-submitted by petitioner, Captain Franklin, and the Native American Heritage Commission. Still the City failed to send out NOPs, or notify the hundreds of citizens who wrote letters, comments, and testified regarding the prior EIR.
To the people who commented within the first 30 days of the draft EIR, a notice was sent out requesting comments only on the chapters of the earlier EIR that were revised. What the City ignored was the clear mandate of CEQA Title 14 Code of Regs § 15088.5 (f) “In no case shall the lead agency fail to respond to pertinent comments on significant environmental issues.” In fact, the City’s brief contains no mention or defense for this significant provision. By law citizens had a right to comment on the entire EIR “recirculated”, especially those portions regarding significant impacts that were woefully inadequate. Again, the City used the cafeteria approach to CEQA, and fulfilling only the requirements they deem necessary, not in compliance with the law.
The “Final Updated Revised Recirculated EIR” the City produced was almost identical to the “Draft Updated Revised Recirculated EIR”. On September 18, 2008, the Planning Commission held a public hearing and adopted a version of the approvals contested. October 22, 2008 the City approved the EIR and related approvals contested herein. November 12, 2008 the second reading of zoning map change and an ordinance of the City of Agoura Hills approving a zoning ordinance amendment Resolution was stated and approved. On November 13, 2008, a notice of determination was sent from the City offices to the County clerk to be recorded, all with very limited or no public comment.
The City is incorrect when they state “the City intended to re-certify those sections of the original EIR the Court (Hon. James C. Chalfant) had determined were adequate.” (Respondent’s Brief p. 10.) Judge Chalfant never determined any portion of the EIR was adequate, and his ruling proves so. (Joint Appendix Tab 19). His refusal to relate the cases underscores this fact. (Joint Appendix Tab 11) Appellant who was a witness at the trial, testified to this fact at the hearing (Transcripts p.24)
The City’s response to comments on the significant environmental issues of Fire Hazard and Cultural Resources was one of deference to the previous EIR, which was woefully inadequate. Possible input from the hundreds of people who commented on the previous EIR, if they had been notified, could have put public pressure on the City to making some concessions, but the people were not notified.
The City went about their approvals, ignoring the law, culminating in a Notice of Determination that they complied with CEQA (which they did not) November 17, 2008.This action was filed December 10, 2008. The City filed a motion to relate the cases of Altmann I and this case before you January 9th 2009. The Court (Judge Chalfant) refused to relate the cases March 3, 2009.
Judge McKnew’s tentative ruling was factually incorrect because he thought the sections of Fire Hazard and Cultural Resources were not included in the “Updated Revised and Recirculated EIR.”. (Joint Appendix Tab 24) (Transcripts p.8-12) Judge McKnew also assumed Judge Chafant used a severability clause, which he did not.
ARGUMENT
1. Respondents did not Prove Substantive Arguments are Time-Barred
In no way did the City prove that Judge Chalfant found the previous EIR legally adequate. He voided the action in total, and ordered the City to fix the EIR in the parts that he recognized as deficient. If he had found the rest legally adequate, he would have had a clarifying statement in his decision, and Judge Chalfant would have related the cases and heard argument on only those portions of the EIR that were augmented. The fact of the matter is the ruling voided the EIR in total, forcing the City, if they intended to go forward with the project, to “prepare a new EIR.” (Appendix tab 16 p. 26 Statement of Case.)
In no way did Judge Chalfant state “all other sections already complied with CEQA.” (Respondent’s brief p. 17.) The City has no proof of this. The City takes one sentence out of context referring to the other five points of the lawsuit which were unsuccessful, and construes it to mean Judge Chalfant deemed the entire EIR legally adequate with the exception of the court’s ruling on biological resources and alternatives. The Court did nothing of the kind. The resulting action voided all approvals, and the EIR itself. (Appendix 16).
The City takes Title 14 Code of Regs §15088.5.(f)(2) completely out of context. Yes, the city “may request” reviewers limit their comments to the revised portions. In no way is this an “admonition” as the City calls it, (Respondent’s brief 18) to thwart comments on significant environmental issues. It is simply that; a request that may or may not be followed for the purposes of CEQA. The provision is “to avoid confusion on which comments to respond … which are duplicates or which no longer pertinent due to revisions.” In fact, §15088.5(f) states specifically “In no case shall the lead agency fail to respond to pertinent comments on significant environmental issues.” Nowhere in the City’s brief do they feint a defense for this significant provision stated plainly and clearly directing the guidelines of §15088.5(f)(2).
The fact of the matter is Judge Chalfant did not use a severability clause approving the EIR in part. The entire EIR needs to be certified, not just a portion of it. That is why the entire EIR is called the “Updated Revised Draft and Recirculated EIR”, and required a “Notice of Determination” (“NOD”) for the entire document.
The NOD the City filed June 20, 2006, was voided by Judge Chalfant’s Statement of Decision and Order. The previous EIR was never certified. After certification, the interests of finality are favored over the policy of encouraging public comment. After certification, there is a small 30-day window for the public to act, or forever hold their peace about the correctness of an EIR. After Certification or a Negative Declaration is Certified and uncontested during that time, it is almost impossible to compel further environmental review.
“Every citizen has a responsibility to contribute to the preservation and enhancement of the environment” ( Pub. Res.Code § 21000(e). The public has the right, possibly a duty, to enforce CEQA law and compel an agency to prepare and certify a legally adequate EIR.
Public Resources Code §15231 states:
ADEQUACY OF EIR OR NEGATIVE DECLARATION FOR USE BY RESPONSIBLE AGENCIES: “A final EIR prepared by a Lead Agency or a Negative Declaration adopted by a Lead Agency shall be conclusively presumed to comply with CEQA for purposes of use by Responsible Agencies which were consulted pursuant to § 15072 or §15082 unless one of the following conditions occurs: (a) The EIR or Negative Declaration is finally adjudged in a legal proceeding not to comply with the requirements of CEQA…”
The Final Updated Revised and Recirculated EIR for the AVSP is not to be presumed to comply with CEQA.
The cases the City sites in their defense are not relevant to this case. In Snarled Traffic Obstructs Progress v. City and County of San Francisco, 74 Cal. App. 4th 793, 797 (1999), the negative declaration was certified in 1988. The certified negative declaration was still good, and not to be revisited, because the original negative declaration was not challenged within the 30-day window after its inception nine years prior.
Laurel Heights Improvement Association v. Regents of the University of California, Cal. 4th 1112, 1130 (1993) (Laurel Heights II) is equally of no avail to the City. To understand why, one must read the court ruling of Laurel Heights Improvement Association v. Regents of the University of California, 47 Cal. 3d 376, 764 (1988) (Laurel Heights I)
In the 1988 ruling of Laurel Heights I, The court found that:
“We find the EIR was inadequate because: (1) it fails to discuss the anticipated future uses of the new facility and the environmental effects of those uses, and (2) the discussion of alternatives is inadequate under CEQA. We find, however, there is substantial evidence the environmental effects identified in the present EIR will be sufficiently mitigated. . . . Because the EIR is invalid in part, a new EIR must be prepared, submitted for public review and comment, and certified in accord with CEQA procedures. We decline, however, to order UCSF’s present activities at the new location stayed pending certification of a new EIR.”
In Laurel Heights I the court used a severability clause, approving the EIR in part; finding “there is substantial evidence the environmental effects identified in the present EIR will be sufficiently mitigated.”
In Laurel Heights II, appellants could only challenge the parts of the EIR that were revised, or they would need to prove circumstances had changed and rose to a level of significance to compel a new EIR within the meaning of PR Title 14 § 15162.
The cases are dissimilar because Judge Chalfant did not validate the City’s EIR in part; rather he voided all actions and all approvals. Judge Chalfant did not relate the cases, because for all practical purposes, it is a new case, challenging this EIR on new grounds. Whether it be the same appellant or different advocate, a citizen group has the right to challenge a legally deficient EIR before certification.
The City’s 2006 NOD was voided. The NOD is a certification by the City that the City followed the law of CEQA, which the court found incorrect, and commanded the City to set aside. The City was guilty of breaking the law. Consequently, the City needs to file a new NOD with this EIR. This action is challenging the NOD filed by the City November 17, 2008. Project opponents cannot endlessly stop projects by litigation; all the City need do is follow the law. The City does not dispute the fact arguments here were plainly brought to the City’s attention. Remedial work to revise the EIR and correct noticing requirements could have been comparatively easy to achieve. The City could have made the begged for changes simply because it was the right thing to do. The City certified a legally inadequate EIR again and excuses procedural errors with the 2008 NOD, which must be overturned.
2. The City did not prove they adequately addressed Fire Hazard
The City did not respond to the SERIOUS LIFE-THREATENING SIGNIFICANT IMPACE OF FIRE HAZARD within the context of CEQA. The City did not disclose and mitigate the projects they are approving as a whole, which must be accomplished within the legal meaning of “tiering”. Cumulative impacts can and must be addressed now, in this EIR. What is equally troubling is the City has no legal obligation after this EIR is certified to do any further fire hazard mitigation. The City exclusively uses the word “may” in relation to conducting any further environmental review, which gives no guarantee the projects will be adequately addressed even at a piece-meal, project by project basis. (67 AR 9288-89) The comments do not represent a “disagreement among experts”, as the City asserts. (Resp. Brief p. 23). The City has no expert validating their erroneous opinion. Both the Fire Department and Fire Expert agree that the Fire Hazard is a Significant Impact that needs to be addressed.
The City gives three measures they are committing to regarding Fire Hazard Safety which are 1) require individual project applicants to develop fuel modification plans…2) prohibit flammable landscape near open space, and 3) 4) require additional engineering and design for a roundabout so that it does not hinder emergency vehicle access. (29 AR 8773). The City defers woefully inadequate mitigation to individual projects, except the designing and engineering of a roundabout, which is suspect mitigation at best. This EIR is approving an additional 17,000 daily vehicle trips, a million square feet of development, AND the addition of 300 homes.
Captain Scott Franklin, an internationally recognized expert on urban wildland fire management, identified the EIR as being deficient in the following ways: 1) EIR fails to identify project is within a HIGH HAZARD FIRE SEVERITY ZONE. (State of California, County of Los Angeles). 2) EIR fails to identify project is within a designated “HISTORICAL WILDIRE CORRIDOR”. 3) EIR fails to mention “Historical Wildfire” history of the area. 4) EIR provides NO FIRE RESOURCE ELEMENT. 5) EIR fails to address cumulative CATASTROPHIC WILDFIRE impact upon local residents, south of proposed development. 6) EIR fails to address cumulative impact upon “NATURAL RESOURCE AREAS” directly south of proposed development. 7) EIR fails to address “EMERGENCY EVACUATION” of residents south of development, associated with historical catastrophic wildfire. 8) EIR fails to address or provide any mitigation, including funding, for the above identified historical catastrophic wildfire impacts. 9) The EIR fails to address “EMERGENCY MEDICAL RESPONSE REQUIREMENTS” for this significant urbanization impact. 10) The EIR fails to address required long term “VEGETATION MANAGEMENT” as required in HIGH FIRE HAZARD SEVERITY ZONES. 11) The EIR is deficient in identifying proposed development landscape plan that is required in a Specific Plan within a HIGH HAZARD FIRE SEVERITY ZONE. Captain Scott Franklin further states: “The fact this plan is in a high fire hazard severity zone and in a historic wildfire corridor means the plan’s impact is significant in regard to fire safety. Federal, State, and local laws, in addition to the California Environmental Quality Act requires the EIR supporting this project address these issues.”
The Fire Department letter submitted prior to the preparation of the EIR for the AVSP dated May 11, 2005 states “this development…would represent a substantial increase in demand on the fire protection and emergency medical resources in the area. Additional manpower, equipment, and facilities are needed in the area now due to the cumulative impact of incremental growth. The Fire Department then outlined a list of safety elements to include in the mitigation measures of the AVSP EIR, which the City chose to ignore. (37AR 9478-84)”.
Close to the approval of this “Updated Revised and Recirculated EIR”, the City issued a response that the fire hazard was “determined to be mitigated to a less than significant level”. In particular, their comment states the AVSP “would increase demand for local fire protection services, but is not expected to require the addition of personnel, equipment, or stations”. (36AR9778-79). Both the Fire Department and the Fire Expert hired by the people disagree, and the City has no substantial evidence to prove this statement is correct.
The CEQA Guidelines require written findings on each significant environmental effect of a project, with each finding supported by substantial evidence and accompanied by a brief explanation of the rationale behind it. (CEQA Guidelines, § 15091, subd. (a) & (b).) Put simply, the findings must “bridge the analytic gap between the raw evidence and ultimate decision” so as to allow a reviewing court to “to trace and examine the agency’s mode of analysis.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11Cal.3d 506, 515, 516.)
Title 14 Code of Regs §15090 reflects (a) Prior to approving a project the lead agency shall certify that: 1) The final EIR has been completed in compliance with CEQA 2) the final EIR was presented to the city and the city considered the information contained in the final EIR prior to approval of the project, and 3) the Final EIR reflects the lead agency’s independent judgment and analysis. Furthermore, the city must comply with § §15091-15995 including findings, approval, statement of overriding considerations, and notice of determination. The evidence brought to this court’s attention is included in Updated, Revised, Recirculated final updated EIR and cannot be ignored. (38AR9577-81.) The fact that the city’s decision not to recirculate the portion of the EIR discussing the fire hazard did not preclude public comment on the significant impact of fire hazard. The burden of proof is upon the city to prove they complied with CEQA law.
In Gray v. County of Madera (2008) 167 Cal. App. 4th 1099; 85 Cal. Rptr. 3d 50; the court of appeals overturned a lower court decision, and among other actions, considered late comments as part of the administrative record. The court ruled “…We will address those allegations of errors that were identified in the untimely expert opinions, as well as in any other late comments, that bear upon the issue of whether there is substantial evidence to support the County’s decision to approve the CEQA project because the County has the burden of showing that there is substantial evidence to support its decision.”
An EIR must identify and evaluate all significant environmental effects of a project. (Public Resources Code, § 21100; §§ 21061, 21151.) “ ‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in the environment.” (§ 21068.) Where the cumulative impacts of a proposed project and other activities are significant, they too must be discussed. (Cal. Admin. Code, tit. 14, CEQA Guidelines §§ 15130, 15126, subd. (e); see Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397, 406-411 [151 Cal.Rptr. 866].) “Cumulative impact analysis ‘assesses cumulative damage as a whole greater than the sum of its parts.’ ”
“The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198.) Substantial evidence is defined in the CEQA Guidelines as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (CEQA Guidelines, § 15384, subd. (a).) Substantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. In this case, there is no evidence to support the city’s erroneous conclusion.
(Public Resources Code § 21082.2, subd. (c); “When experts in a subject area dispute the conclusions researched by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency’s reasons for accepting one set of judgments instead of another.” (Association of Irritated Resident v. County of Madera (2003), supra, 107 Cal.App.4th at p.1383, 1391.)
The City plainly abused its discretion by ignoring expert opinion and making up their own “opinion” unsupported by fact or logical conclusion.
Certification of an EIR which is legally deficient because it fails to adequately address an issue constitutes a prejudicial abuse of discretion regardless of whether compliance would have resulted in a different outcome. (See Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1022-1023 [192 Cal.Rptr. 325]; cf. also Pub. Resources Code, § 21005 (effective Jan. 1, 1985).) In evaluating the actions of the lead agency in light of the guidelines provided by CEQA, in the words of the Supreme Court, “ ‘that the Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ ” (No Oil v. City of Los Angeles (1987) 13 Cal. App. 3d 223; 242 Cal. Rptr. 37, quoting Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, accordingly, “CEQA requires more than merely preparing environmental documents.” (Cal. Admin. Code, tit. 14, § 15002, subd. (h).)
“[It] is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it must reflect a conscientious effort to provide public agencies and the general public with adequate and relevant detailed information about them. [Citation.]” (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 79 [198 Cal.Rptr. 634].) A cumulative impact analysis which understates information concerning the severity and significance of cumulative impacts impedes meaningful public discussion and skews the decisionmaker’s perspective concerning the environmental consequences of the project, the necessity for mitigation measures, and the appropriateness of project approval. (See San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, at p. 80.) An inadequate cumulative impact analysis does not demonstrate to an apprehensive citizenry that the governmental decisionmaker has in fact fully analyzed and considered the environmental consequences of its actions. (See Cal. Admin. Code, tit. 2, § 15003; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86 [118 Cal.Rptr. 34, 529 P.2d 66].)
“[C]onsideration of the effects of a project or projects as if no others existed would encourage the piecemeal approval of several projects that, taken together, could overwhelm the natural environment and disastrously overburden the man-made infrastructure and vital community services. This would effectively defeat CEQA’s mandate to review the actual effect of the projects upon the environment.” (Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal. App. 3d 300, 306 [223 Cal. Rptr. 18].)
In this case, the addition of 1,000,000 square feet of new commercial development plus 300 residences with no limit of square footage on land near the 101 freeway on Kanan Dume Road and Agoura Road in a Zone 4, SEVERE WILDFIRE AREA IS CAUSE FOR ALARM. It is easy for one to imagine how the size of this development will impact the Threat of Wildfire, Emergency Evacuation, and the Safety of surrounding residents, especially when not one new road, fire access lanes, or road widening is proposed as mitigation for the project. People are very concerned about the safety and wisdom of the City’s proposed “roundabout”, and if it will function at all correctly, as Kanan Dume Road is a highway to the Beach. This is exemplified in numerous comments in the initial approval process, and in the 250 people who signed a petition to “remove the roundabout from consideration”. (48 AR2150-79,2616-18). Councilman Weber, also concerned, approved a monitoring program that will allow the City to remove the roundabout if it does not function. (68 AR 2694-96.) Ironically, the roundabout is the only project level mitigation identified for emergency evacuation.
‘The EIR must contain facts and analysis, not just the bare conclusions of the agency. An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ ” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390 [133 Cal. Rptr. 2d 718]. “When the informational requirements of CEQA are not complied with, an agency has failed to proceed in ‘a manner required by law.’” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 141 [104 Cal. Rptr. 2d 326].) If the deficiencies in an EIR “preclude[] informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.”
The City did not prove it’s statement in the “Updated Revised Recirculated EIR” that the Significant impact of Fire Hazard has been mitigated to a less than significant level.
Eller Media v. Comm. Redevelopment Agency (2003) 108 Cal.App.4th 25, 43 is of no avail in the City’s defense. In this case, Media challenges a directive by the City to prepare a Supplemental EIR (“SEIR”) for billboards he wants to erect in Hollywood CA. The billboards did not conform to the City of Hollywood’s plans, and the City asked Media for an SEIR.
The AVSP project approved here with this EIR will not need any other SEIR for individual projects. The City does not require any of the development projects to perform an SEIR as a condition of compliance. The City exclusively uses the word “may” in referring to requiring additional CEQA documentation. (67 AR 9288-89.) We are educated by case law to know that if the project(s) approved with this EIR are not drastically changed, no further CEQA analysis will be required. See Citizens for Responsible and Equitable Development (“Creed”) v. City of San Diego (2005) 36 Cal.Rptr. 893.
As raised in petitioner’s opening brief, the Village West Project is poised for commencement as described by Theodore Snyder in his letter to the city dated July 3, 2008, and the developers are ready to go. (64AR9750-57.) It is CRITICAL to the people of this region that the Fire Hazard be assessed and mitigated NOW.
3. The City did not Prove they Adequately Addressed Impacts to Cultural Resources
The letter from the Native American Heritage Commission outlines what the City must do to comply with the law. Because the letter did not specifically criticize the EIR is not an issue because Petitioner raised these objections. (71 AR 9692-4 AR9738-40.) This information must be disclosed and mitigated before the project is approved. Only in this way may the decision-makers and the public be informed of the level of significance, mitigation measures, or possible avoidance that may be considered now. Only in this way, may we know the ramifications of this decision to approve developments on what is known as sacred land.
The Native American Heritage Commission submitted a letter outlining the process the city must incorporate in the EIR and mitigation measures to comply with CEQA (60AR8418-20). This letter is of new significance because it is the first expert opinion letter submitted commenting on the cultural resources in the EIR. The Native American Heritage Commission’s directions include contacting the California Historic Resources Information Center (“CHRIS”) for recorded sites. This will determine if the Area of Potential Effect (“APE”) was surveyed, if there are known cultural resources there, if the probability is low, moderate or high that cultural resources are present, if a survey is required to determine whether previously unrecorded cultural resources are present, and if an archeological inventory is required, the final stage is the preparation of a professional report detailing the findings and recommendations of the records search and field survey.
In this way the public and decision makers can actually see where, if any, the areas of significance are in the AVSP, and assess the impact the development will have on these sites before the development zoning and density is approved. At this time, zoning, and project footprints could be modified to accommodate the retention of important cultural resources. Without an actual map of the site with the potentially significant areas charted, the public nor decision makers may assess the impact of the approval of this zoning, and cannot ascertain viable ways to mitigate these impacts, including the option of avoidance which must be considered at this stage of the EIR process, as defined in § 15370 of CEQA.
Only portions of the project site were surveyed for archeological resources, and these were piecemeal studies of the area done at various times for a variety of reasons. Five sites are discussed in the EIR, but they are not mapped, so one finds it difficult to visualize where these sites are located, and if they are in the probable development footprint. (61AR8688-96)
This is the first time the City has claimed that “due to concerns about the misuse of information relating to the location of culturally sensitive sites, cultural resources are confidential documents that may not be released to the public as part of the EIR.” (Resp. Brief p. 28). This was not used as a defense in the trial court, this fact was not mentioned anywhere in the EIR, this statement is undocumented by the City, by the Native American Heritage Commission, by any other government agency or municipality, or by Federal, State, or Local law.
The studies the City relied upon for significant impacts to cultural resources are not in the Administrative Record. If what the City is saying is true about these documents being confidential, there still must be a custodian to the documents and a vetting process for viewing. This is public information needed to assess the adequacy of an EIR. The City’s defense does not make sense because the State has these archeological sites on a public data base. We do not know if the information the City provides exists, or if it is accurate. We are talking about 134 acres to reasonably analyze here, not hundreds or thousands. The likelihood of large, disturbed areas known now, and the mapping of cultural resources must be disclosed now, and supporting documents on which this information was derived must be accessible on some level.
As mandated in Title 14 Code of Regs § 15091. FINDINGS B) (e) The public agency shall specify the location and custodian of the documents or other material which constitute the record of the proceedings upon which its decision is based. How can the City prove they complied with the law when they cannot produce or direct the location to even one supporting document for Section 4.6 Cultural Resources?
The only mitigation the city is actually committing to is monitoring the sites during construction, and following State Health and Safety Code § 7050.5 if human remains are unearthed (which would be a felony if they did not comply). How can the city label this mitigation as reducing the impact to “less than significant”?
The AVSP EIR and related mitigation measures are not believable and viable to reduce this significant impact to less than significant levels, because the EIR fails as an informational document to identify significant archeological sites where they presently exist, and identify adequate, specific mitigation measures the city will enforce. Mitigation measure HA-1(a) as defined by the city, are six “examples” of mitigation that the city “may include, but are not limited to…” Or the City may require no mitigation at all except monitoring the sites during construction. The point of the matter is identification and mitigation cannot be deferred.
Yet again, the city defers archeological resource mitigation to individual projects. Yet we know from case law, this is unenforceable. We must rely on the mitigation the city is committing to NOW in this EIR. At this time, the archeological sites can be known, or could be known. Therefore, this information must be disclosed at this time, at this juncture of approval. The Certification of this EIR precludes any other need for environmental review, because each of the three large projects’ environmental effects are assessed, mitigated, and approved in this EIR.
Under Public Resources Code § 21166 and its implementing regulation, and Guidelines § 15162, a lead agency is not required to use an initial study to determine the effect of new information or changed circumstances. Also, if an agency determines the new information or changed circumstances do not rise to the level of significance requiring an additional EIR, the agency need not take any further action. (Guidelines, § 15162, subd. (b).) If the information was known, or could have been known, when the earlier EIR was certified, a new EIR cannot be prepared even if the information is significant. This is why it is important to assess this significant impact and viable mitigation measures now. With the incredible upzoning of these properties (see project description) (62AR8368) and the likely footprints of the development and seen in the schematic drawings submitted to the city regarding these projects (AR 7718, 7721, 7722) enough relevant information is known to identify and mitigate now before the densities are approved. The Cornerstone Development is ready to go forward on the approval of this EIR. (64AR9750-57.)
With the certification of this EIR, archeological resources must be clearly disclosed, and mitigation measures must be believable, viable, and enforceable. Again in response to the Native American Heritage Commission letter, the city states that they are not recirculating the portion of the EIR addressing this significant impact, so the city states the Native American Heritage Commission’s comments are inappropriate. What the city fails to realize is the entire EIR needs recertification, not just a portion of it. All comments relating to significant impacts are appropriate. The Native American Heritage Commission letter is pointing out obvious flaws in the EIR that must be corrected.
In “tiering”, the effects of the proposed action at hand must be disclosed, not deferred. Identifying this as a Specific Plan, as one project under CEQA, the impacts of this plan must be disclosed and mitigated now. The likely disturbance of land mass can be reasonably known at this time. We see once a project has been certified by CEQA there is no legal requirement for any additional review. There are specific developments on the table, as referenced by the letter by The Martin Group discussing the development in detail, and in which Theadore Snyder cites “numerous meetings” with the City. (AR 72 9750-53.) The City is far closer to approval of these projects than they would like us to believe.
“When a lead agency is considering whether to prepare an SEIR, it is specifically authorized to limit its consideration of the later project to effects not considered in connection with the earlier project.” (Temecula Band of Luiseño Mission Indians v. Rancho Cal. Water Dist. (1996) 43 Cal.App.4th 425, 437 [50 Cal. Rptr. 2d 769].)
The EIR is to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. (The People ex rel Department of Public Works v. Joseph J. Bosio (1975) 47 Cal. App. 3d 495; 121 Cal. Rptr. 375).
“Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247, 259 [104 Cal. Rptr. 761, 502 P.2d 1049].
It is true the City will have discretion on whether or not to perform any additional environmental review on the three large projects they are approving with this EIR. Judge Chalfant clearly rejected the City’s argument this is a first tier EIR and other subsequent EIRs would follow. (Appendix 16; p. 12 of Statement.)
The City likes to claim this is not a redevelopment plan EIR. They like to claim this is a Specific Plan EIR within a redevelopment area. Unfortunately, the ex-parte motion proving that the Specific Plan lies completely in a redevelopment area, and the City is already using money from the redevelopment agency for this project, failed at the trial court level. (JA Tab 25). The City could easily claim this is a redevelopment project down the road, and no one could prove them wrong. Either way, the AVSP EIR governing these three projects will legally not require any additional environmental review. The drawback for the people is that redevelopment plans are good for 30 years, as opposed to a customary 10 years for development projects.
4.The City did not prove they Complied with Noticing Requirements
To be clear, the City did not send out Notices of Recirculation to all the citizens who wrote letters commenting on the previous EIR, in addition to the people who spoke at hearings or signed petitions after the first 30 days that the draft EIR was available. The record contains other letters received by the City after this small time-frame, but the record shows here five letters, one from Ragu Nathan, attorney at law; people who were never notified. (46 AR2595-602)
The trial court rejected the argument Mary Wiesbrock was denied notification, because she heard it through the grapevine the City was re-circulating and approving this EIR, and was able to make her comments to the City before approval. (Resp. Brief footnote p. 38.) The court needs to ask, “How Many More Mary Wiesbrocks Were Not Informed?” The answer is hundreds.
The City has no defense for the fact §15088.5(3) IS NOT governed by §21092.2, and is a stand-alone provision of CEQA. By the relatively new provision of §15088.5(3), citizens have the right to expect notification when they take time to comment on a project. The City staff decided for themselves to only notify the people who commented within the first 30-days of the draft EIR, rather than comply with §15088.5(3). This is not a harmless error.
In fact, §15088.5(f)(3) is part of the noticing requirement of §21092.1. These notices are pursuant to section §21092. §21092(b)(2) states that the noticing requirements cannot be invalidated for the alleged inadequacy of notice content. Even if this provision does apply, appellant is not challenging the notice content.
The City cites a “caveat” in their defense (Resp. Brief p. 39) of 21092.2 which clearly does not pertain to 15088.5(f)(3) or 21092.1.
21092.2 Request to Receive Notices is pursuant to 21080.4, 21083.9, 21092, 21008 and 21152 (Pub. Rec. code 21092.2). The notices contested here are pursuant to 15088.5(f)(3) and 21092.1. §15088.5(f)(3) and §21092.1 are clear, straightforward notification requirements that the City must enforce and did not.
It is simply not the judgment call of the City to decide citizens who commented on the previous EIR “may have no interest in receiving notice.” (Reply Brief p. 39.) Rather all letters, oral testimony and comments are part of the “comments” of the prior EIR that require notification in accordance with §15088.5(3).
Public Resources Code §21177, which defines when alleged grounds for noncompliance must be presented, requires objections to be brought up “during the public comment period … or prior to the close of the public hearing on the project.”
The citizens compelled the City to reopen the public comment period June 16, 2006. (AR Vol. 9 tab 148 p.2624-98.) The citizens compelled the City council to make a provision that they would monitor the roundabout and remove it if it did not work. (AR Vol. 9 tab 148 (68) 2694-96.) The citizens were deprived from commenting on, and possibly changing the City’s course of action because they were not notified as required by law.
The people did have a measurable effect on the first approval process, and pressured the City into reopening the comment period. It is probable that if the hundreds of people who gave written or oral comment in regard to the previous ASVP were notified, they could change the outcome of the hearings and the project, if only to get meaningful concessions.
The City likewise has no defense for their negligence in not sending out NOPs pursuant to 15088.5(d), 15082 , and 15087. Since the City failed to send out Notices of Preparation, and then failed to send out the Notice of the DEIR to Responsible and Trustee Agencies, the City did not prove compliance. Organizations identified by the City as Responsible and Trustee, but the City sent no notice whatsoever, and the City has no proof of sending notices are: The City of Malibu, U.S. Army Corps of Engineers, South Coast Air Quality Management District, Department of Housing and Community Development, California Department of Water Resources, Los Angeles County Health Services, California Department of Parks and Recreation, The Office of Historic Preservation, Governor’s Office of Emergency Services, California Department of Toxic Substance Control, and California Highway Patrol.
II. Conclusion
It’s unfortunate when the needs of a community must be heard in a courtroom rather than listened to in a hearing room. Please reverse the trial court decision and grant the prayer of relief stated in the Petition for Writ of Mandate. Thank you for your time and service to our State.
Dated: April 25, 2010 Respectfully Submitted,
Mary Altmann
By: _____________________________
Mary Altmann
[1] Public Resources Code § 15231. ADEQUACY OF EIR OR NEGATIVE DECLARATION FOR USE BY RESPONSIBLE AGENCIES: “A final EIR prepared by a Lead Agency or a Negative Declaration adopted by a Lead Agency shall be conclusively presumed to comply with CEQA for purposes of use by Responsible Agencies which were consulted pursuant to § 15072 or § 15082 unless one of the following conditions occurs: (a) The EIR or Negative Declaration is finally adjudged in a legal proceeding not to comply with the requirements of CEQA…”
