Citizens for Smart Development etc. v. County of Amador CA3 ( 2020 )

Filed 12/11/20 Citizens for Smart Development etc. v. County of Amador CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
----
CITIZENS FOR SMART DEVELOPMENT IN C082915
AMADOR COUNTY,
(Super. Ct. No. 15CVC0374)
Plaintiff and Appellant,
v.
COUNTY OF AMADOR,
Defendant and Respondent.
To address jail overcrowding, the County of Amador (the County) proposes to
expand its existing jail to add 40 additional inmate beds, space for inmate education, and
other supportive facilities. As part of the planning process for this project, the County
completed an initial study to determine the project’s potential environmental impacts, as
is required under the California Environmental Quality Act (CEQA; Pub. Resources
1
Code, § 21000 et seq.).1 Following the study, and after hearing public comments, the
County found the proposed expansion would have no significant impacts if certain
mitigation measures were implemented. It thus prepared a mitigated negative declaration
for the project.
Citizens for Smart Development in Amador County (Citizens) brought this action
in response. In their view, the County failed to sufficiently evaluate the project’s
aesthetic and hydrology impacts, wrongly deferred the specifics of certain mitigation
measures, wrongly found the project’s mitigation measures would adequately reduce
project impacts, and failed to certify that the mitigated negative declaration reflected the
County’s independent judgment. The trial court disagreed with each of their claims, and
we do too. We thus affirm.
BACKGROUND
The County’s current jail was constructed in 1984 and has beds for 76 inmates.
But in recent years, it has housed far more than these beds can sleep. In 2014, for
example, the jail housed an average of over 91 inmates.
To address overcrowding, in 2008, the County applied for and obtained a
conditional grant from the state to finance a new jail that could house a larger inmate
population. But the County ultimately was unable to move forward with the planned new
facility, in part because of difficulties in deciding where to site the jail and in part
because of funding issues. After these plans fell through, the County considered in 2014
a cheaper alternative to a new facility: An expansion of its existing jail facility. That is
the project before us.
The County’s proposed jail expansion involves the construction of an 8,000 to
10,000 square foot space adjacent to the existing jail that would include, among other
1 Further undesignated statutory references are to the Public Resources Code.
2
things, 40 new inmate beds and space for exercise, educational programs, and segregating
inmates. It would also include new walkways and a new parking lot with about 20
spaces.
In late 2014, the County initiated CEQA review for the project. To that end, the
County completed a ground penetrating radar survey, a biological resources assessment,
and a geotechnical investigation for the proposed project. In part based on these studies,
the County found that “although the proposed project could have a significant effect on
the environment, there will not be a significant effect in this case because revisions in the
project have been made by or agreed to by the project proponent.” It afterward sought
comments from the public about the project.
In response to the proposed expansion, several residents living near the jail
expressed concerns about the project’s potential environmental impacts. In particular, as
relevant here, these residents contended the project would infringe on one resident’s
privacy, shade another’s property, potentially have bothersome lighting, and lead to
increased stormwater runoff.
But in the end, the County continued to find the jail expansion would “not have a
significant adverse effect on the environment due to mitigation measures incorporated
into and required of the project.” It thus adopted a mitigated negative declaration (MND)
for the project on July 20, 2015, and issued a notice of determination about its findings
that same day.
Citizens afterward filed a petition for writ of mandate challenging the County’s
approval of the project, raising, in the trial court’s view, four issues: “(1) the MND is
inadequate in impacts analyses regarding aesthetics; (2) the MND is inadequate in
impacts analyses regarding hydrological impacts; (3) the Project will create a mandatory
finding of significance; and (4) the County failed to make a required CEQA finding.”
But the trial court found none of Citizens’s claims warranted granting their petition. It
thus denied their petition. Citizens timely appealed.
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DISCUSSION
I
CEQA Background
We start with a little background on the purpose and structure of CEQA. CEQA
serves “to ensure that public agencies will consider the environmental consequences of
discretionary projects they propose to carry out or approve.” (Stockton Citizens for
Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.) To that end, an
agency proposing to carry out or approve a project generally must conduct an initial study
to determine “if the project may have a significant effect on the environment.” (Cal.
Code. Regs., tit. 14, § 15063, subd. (a).)
Depending on the initial study’s findings, the agency must then prepare either an
environmental impact report (EIR) or a negative declaration. If “there is no substantial
evidence that the project or any of its aspects may cause a significant effect on the
environment,” the agency need only prepare a negative declaration that “briefly
describ[es] the reasons that a proposed project . . . will not have a significant effect on the
environment.” (Cal. Code. Regs., tit. 14, §§ 15063, subd. (b)(2), 15371.) But if
substantial evidence shows the project may in fact have a significant environmental
effect, then the agency generally must prepare an EIR providing detailed information
about the project’s potential environmental impacts. (§§ 21100 [state agency
requirements], 21151 [local agency requirements], 21061 [defining an EIR].) But not
always. Rather than prepare an EIR under these circumstances, “[t]he public agency may
instead prepare a mitigated negative declaration (MND) if ‘(1) revisions in the project
plans . . . before the proposed negative declaration and initial study are released for public
review would avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (2) there is no substantial
evidence in light of the whole record before the public agency that the project, as revised,
may have a significant effect on the environment.’ (Pub. Resources Code, § 21064.5.)”
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(Friends of College of San Mateo Gardens v. San Mateo County Community College
Dist. (2016) 1 Cal.5th 937, 945.)
In reviewing an agency’s compliance with CEQA, courts review for abuse of
discretion. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086,
1112.) Courts will find an agency abused its discretion if it either failed to proceed in a
manner required by law or reached a decision not supported by substantial evidence. (Id.
at p. 1110.) Although the “substantial evidence” standard is often viewed as a highly
deferential one, it is less so in cases involving challenges to an agency’s decision to
prepare a negative declaration rather than an EIR. In those types of cases, like ours,
courts apply what is known as the “fair argument” test. Under that test, courts will find
an agency’s decision is not supported by substantial evidence if a challenging party has
raised a “fair argument,” based on substantial evidence in the record, that a proposed
project may have a significant environmental effect. (See Friends of College of San
Mateo Gardens v. San Mateo County Community College Dist., supra, 1 Cal.5th at p.
957.) With that background, we turn to Citizens’s arguments.
II
The County’s Review of the Project’s Potential Environmental Impacts
A. Aesthetic Impacts
Citizens first take issue with the County’s review of aesthetic impacts. First, they
assert that the project will have significant unmitigated impacts concerning “privacy and
sunlight blockage.” In our view, however, they never raise a “fair argument” that these
alleged impacts could be significant. In terms of privacy, Citizens note that one resident
alleged that certain parts of the project would look down onto his property. That same
resident then later asserted the project would shade another landowner’s property during
the winter. But this limited evidence about the potential impacts to two properties is not
substantial evidence raising a fair argument that the project may have a significant impact
on the environment. (See Parker Shattuck Neighbors v. Berkeley City Council (2013)
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222 Cal.App.4th 768, 782 (Parker Shattuck Neighbors) [“In general, CEQA does not
regulate environmental changes that do not affect the public at large.”]; Clover Valley
Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 243 [“ ‘ “Under CEQA, the
question is whether a project will affect the environment of persons in general, not
whether a project will affect particular persons.” ’ ”]; Bowman v. City of Berkeley (2004)
122 Cal.App.4th 572, 586 (Bowman) [“obstruction of a few private views in a project’s
immediate vicinity is not generally regarded as a significant environmental impact”].)2
Citizens next allege the project will have significant lighting impacts. They note
that one resident testified that new “ ‘lighting might . . . produce glare’ ” for some
properties, and another similarly testified that new lighting “ ‘might glare in through the
windows’ ” of some neighboring properties. But these speculative comments standing
alone fall well short of showing the project’s lighting impacts could be significant. (See
§ 21080, subd. (e)(2) [“[s]ubstantial evidence is not . . . speculation”].) These comments
also appear to ignore the County’s mitigation measure to address lighting impacts. In the
MND, the County found impacts caused by exterior security lighting for the project
would be reduced to less than significant by using lighting “of a type and style (shielded
and downward directed) so as to minimize light bleed and glare onto adjacent properties.”
Although Citizens express concerns about potential glare, they never explain in their
opening brief why this mitigation measure would fail to address their concerns. We thus
have no reason to find the County’s mitigation measure inadequate.3
2 The County contends we should also reject Citizens’s privacy claim for another
reason: An impact to an individual’s privacy is not an aesthetic impact. But because we
reject Citizens’s argument for another reason, we need not consider this alternative
argument.
3 In their reply brief, Citizens briefly explain why they believe this mitigation
measure is inadequate. But because they raise this argument for the first time in their
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Finally, Citizens contend one of the County’s mitigation measures wrongly defers
the specifics of mitigation. In the MND, the County found impacts to “the existing visual
character or quality of the site and its surroundings” would be reduced to less than
significant by submitting project plans “to the City of Jackson for design review and
comment.” According to Citizens, this “design review after the fact (after project
approval by the County) does not count as CEQA compliance prior to project approval,
as is required.” We reject the claim.
To begin, courts have rejected similar arguments concerning the use of design
review. Take Bowman, supra, 122 Cal.App.4th 572. The lead agency there found a
housing complex, with retail on the ground floor, “would not ‘[s]ubstantially degrade the
existing visual character or quality of the site and its surroundings’ . . . in part because
‘[c]onstruction of this project is subject to design review and approval prior to issuance of
building permits.’ ” (Id. at p. 593.) Several individuals and an association later
challenged this conclusion, contending, among other things, that the project would be
“out of character with its surroundings” and thus cause significant aesthetic impacts. (Id.
at p. 587.) But the court rejected the challenge based on two principal considerations.
First, the court found it significant that the project would be located in an area that was
already highly developed. Quoting the regulations implementing CEQA, the court
explained that “ ‘the significance of an activity may vary with the setting. For example,
an activity which may not be significant in an urban area may be significant in a rural
area.’ [Citations.]” (Id. at p. 589.) The court then concluded that it “d[id] not believe
that our Legislature in enacting CEQA . . . intended to require an EIR where the sole
environmental impact is the aesthetic merit of a building in a highly developed area.”
(Id. at p. 592.) Second, the court found it significant that the project was subject to
reply brief, without good cause, we will not consider it. (See Neighbours v. Buzz Oates
Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
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design review before the issuance of building permits. According to the court, “[w]here a
project must undergo design review under local law, that process itself can be found to
mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied
with the outcome.” (Id. at p. 594.) “A contrary holding that mandated redundant
analysis,” the court added, “would only produce needless delay and expense.” (Ibid.)
Bowman’s reasoning, if applied here, would appear to weigh heavily in the
County’s favor. But even if we found Bowman distinguishable, as Citizens maintain, we
would still reject their argument. Although Citizens contend the County’s design-review
measure is flawed, they never raise a fair argument that the project could have
unmitigated significant impacts as a result. They maintain, as discussed, that the project
could have significant aesthetic impacts based on lighting, privacy, and sunlight issues;
but again, we find none of these contentions persuasive. And so, even assuming the
design-review measure would do nothing, Citizens still would have failed to raise a fair
argument that the project’s aesthetic impacts could be significant. We thus reject their
contention that the challenged measure may insufficiently mitigate the project’s potential
aesthetic impacts. (See Parker Shattuck Neighbors, supra, 222 Cal.App.4th at p. 778 [a
court “need not consider” a party’s challenge to a negative declaration’s mitigation
measures unless that party first identifies substantial evidence supporting a fair argument
that the project could have a significant impact]; 1 Kostka & Zischke, Practice Under the
Cal. Environmental Quality Act (Cont.Ed.Bar 2019) § 6.78C [“A reviewing court need
not consider whether mitigation measures in a negative declaration are adequate if the
petitioner fails to identify substantial evidence supporting a fair argument that the
project’s impacts would be significant in the absence of mitigation.”].)
B. Hydrological Impacts
Citizens next challenge the County’s analysis of hydrological impacts. First,
expressing concern that the project will increase runoff to neighboring properties,
Citizens fault the County for not studying the project’s potential impacts from increased
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runoff “with expert analysis in the form of a hydrology study.” But the County did
obtain an expert report, albeit a very brief one, from an engineering firm, which discussed
runoff and other project issues. That report, for example, acknowledged potential runoff
issues and recommended that “[s]pecial care . . . be taken to ensure adequate drainage is
provided throughout the life of the structure.” The County, in light of this report and
other considerations, agreed “to ensure that all runoff from the project site will not
exceed the pre-project flow rates.” It also agreed to design the project “consistent with
local requirements,” which impose similar limitations on runoff. Under Jackson City
Municipal Code, for example, “[t]he net rate release of runoff from a site onto adjoining
parcels and rights-of-way after construction shall not be greater than pre-construction
levels of the runoff release from the site based on a 20-year, one-hour storm event.”
(Jackson Mun. Code, § 17.30.050(D).)
Citizens might have preferred a more in-depth study about runoff, and, in some
circumstances, we might have agreed that a more detailed study would have been better.
But here, given the County’s commitment to ensure the project did not increase runoff
rates, we are not persuaded that the County needed to undertake a more detailed study
about the potential impacts from increased runoff rates. In any event, even if a more in-
depth study would have been helpful, a lack of study “ ‘on a particular issue does not
automatically invalidate a negative declaration.’ ” (Gentry v. City of Murrieta (1995) 36
Cal.App.4th 1359, 1379.) Although it may “ ‘enlarge the scope’ of the fair argument
which may be made ‘based on the limited facts in the record,’ ” a “lack of study, standing
alone, does not give rise to a fair argument that [a] [p]roject will in fact have significant
. . . effects. [Citation.]” (Id. at p. 1382; see also Parker Shattuck Neighbors, supra, 222
Cal.App.4th at p. 786 [“a suggestion to investigate further is not evidence, much less
substantial evidence, of an adverse impact”].)
Citizens next contend the County’s mitigation measures to address runoff impacts
wrongly defer the specifics of mitigation. To address runoff related issues, the County,
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among other things, agreed to develop drainage plans “to assess drainage patterns,
potential erosion and downstream flooding impacts” before final project design. The
County further agreed that “[t]he final project design will be consistent with local
requirements and include design features to ensure that all runoff from the project site
will not exceed the pre-project flow rates.” According to Citizens, these measures “are
vague, unenforceable, improperly defer to future mitigation, and are otherwise
inadequate.” We disagree.
Citizens’s objection is similar to one our court rejected in Friends of Oroville v.
City of Oroville (2013) 219 Cal.App.4th 832 (Friends of Oroville). The lead agency
there, for one of its mitigation measures, required the project applicant to “submit for the
[lead agency’s] approval a drainage plan ‘that will ensure that runoff from the [P]roject
site is released at a rate no greater than that of the pre-development condition.’ ” (Id. at
p. 838.) Several plaintiffs later challenged the mitigation measure, alleging it
“improperly defer[red] formulation of specific mitigation strategies until after the
Project’s approval.” (Ibid.) But we rejected the challenge. We noted that “[d]eferral of
mitigation specifics is permissible where the relevant agency commits itself to mitigation
and articulates specific performance criteria or standards that must be met for the project
to proceed.” (Ibid.) We then found the agency’s measure “compl[ied] with this
principle,” reasoning that it articulated a specific performance standard—namely, no
increase in the rate of runoff—to mitigate potential drainage impacts. (Ibid.)
We find likewise here. As in Friends of Oroville, the County identified a potential
problem (a potential increase in runoff) and committed to a specific performance standard
to address that problem (no increase in the rate of runoff). Although the County has yet
to identify the particular means to achieve that objective, other than that it will involve
the use of underground cisterns, the County’s mitigation measure is not unlawful for that
reason. (See Friends of Oroville, supra, 219 Cal.App.4th at p. 838; Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 418 [lead
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agency satisfied CEQA when it committed to limit noise from a project’s ventilation fans
to a certain level, even though the fans had yet to be selected and specific noise control
treatments had yet to be evaluated]; Defend the Bay v. City of Irvine (2004) 119
Cal.App.4th 1261, 1274-1276 [lead agency satisfied CEQA when it “committed to
mitigation, and . . . specified the criteria to be met,” even though the details of mitigation
would depend on future study].)
C. Hazardous Emissions or Materials
Citizens also challenge the County’s mitigation measures concerning potential
impacts from hazardous emissions and materials. In their view, the County wrongly
defers the specifics of mitigation related to these impacts.
But Citizens never acknowledge that the trial court found this claim “waived
and/or barred.” The trial court evaluated only those claims “raised in the Petition and
substantively briefed by [Citizens] in [their] opening brief,” finding all other arguments—
including Citizens’s argument here—“waived and/or barred.” Because Citizens declined
to challenge this aspect of the court’s decision, we have no reason to find it flawed. (See
Center for Biological Diversity v. California Department of Conservation (2019) 36
Cal.App.5th 210, 226 [“ ‘ “ ‘[i]ssues not raised in an appellant’s brief are deemed waived
or abandoned’ ” ’ ”].) We thus will not disturb the court’s unchallenged finding that
Citizens’s claim here was “waived and/or barred.”
D. Mandatory Findings of Significance
Lastly, in terms of the County’s evaluation of project impacts, Citizens take issue
with the County’s consideration of certain “mandatory findings of significance.”
The whole of Citizens’s argument consists of a single paragraph: “[T]he
Mitigated Negative Declaration itself concluded that the project would create a
Mandatory Finding of Significance but provides no explanation nor mitigation measure.
[Citation.] The problem is that the box stating the impact would be reduced to
significance with mitigation measure is checked [citation], but no mitigation measures
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were identified. There is substantial evidence in the record that the project will cause
substantial adverse effects on human beings, either directly or indirectly. That evidence
is set forth above in section IV.B.1.a. [Citation.] Thus, the impact remains significant
and unmitigated so a Negative declaration is not substantiated.”
Citizens’s argument suffers from several significant flaws. To start, their
argument is premised in part on a cross-referenced section, section IV.B.1.a., that does
not exist. But even more problematic, no part of Citizens’s argument was presented at
the administrative level. Parties challenging an agency’s negative declaration or EIR
under CEQA must show “the alleged grounds for noncompliance . . . were presented to
the public agency orally or in writing . . . .” (§ 21177, subd. (a).) But Citizens never
made that showing here. For that reason, the County asserted that Citizens’s claims
relating to “Mandatory Findings of Significance . . . [are] barred and may not be
litigated.” We agree. (California Native Plant Society v. City of Rancho Cordova (2009)
172 Cal.App.4th 603, 615 [“ ‘ “Exhaustion of administrative remedies is a jurisdictional
prerequisite to maintenance of a CEQA action.” ’ ”].)
III
The County’s Independent Judgment and Analysis
Finally, we consider Citizens’s contention that the County failed to “make a
finding that the mitigated negative declaration reflects the agency’s independent
judgment and analysis.” (See § 21082.1, subd. (c)(3) [a lead agency must, “[a]s part of
the adoption of a negative declaration or a mitigated negative declaration, or certification
of an environmental impact report, find that the report or declaration reflects the
independent judgment of the lead agency”].)
The trial court rejected this argument on the ground that Citizens “failed to
administratively exhaust this issue.” The court reasoned that Citizens never commented
about this shortcoming during the administrative proceedings, even though they had
ample opportunity to do so. (See § 21177, subd. (a) [a party challenging an agency’s
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MND under CEQA must show “the alleged grounds for noncompliance . . . were
presented to the public agency orally or in writing . . . .”].)
In their opening brief on appeal, however, Citizens never allege the trial court
erred in this regard. We thus have no reason to depart from the trial court’s finding that
Citizens forfeited their claim here by “fail[ing] to administratively exhaust this issue.”
(See Center for Biological Diversity v. California Department of Conservation, supra, 36
Cal.App.5th at p. 226 [“ ‘ “ ‘[i]ssues not raised in an appellant’s brief are deemed waived
or abandoned’ ” ’ ”].)4
DISPOSITION
The judgment is affirmed. The County is entitled to recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
MURRAY, J.
4 In their reply brief, Citizens argue for the first time that the trial court wrongly
found they failed to exhaust their administrative remedies. But because they raise this
argument for the first time in their reply brief, without good cause, we will not consider
it. (See Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.)
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