Newtown Preservation Society v. County of El Dorado

Filed 6/16/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
NEWTOWN PRESERVATION SOCIETY et al., C092069
Plaintiffs and Appellants, (Super. Ct. No. PC20190037)
v.
COUNTY OF EL DORADO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of El Dorado County, Dylan
Sullivan, Judge. Affirmed.
Soluri Meserve, Patrick M. Soluri and Osha R. Meserve, for Plaintiffs and
Appellants.
David A. Livingston, County Counsel, Breann M. Moebius, Deputy County
Counsel, for Defendants and Respondents.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II through IV of the Discussion.
1
This California Environmental Quality Act (Act) challenge concerns the adoption
of a mitigated negative declaration for and approval of the Newtown Road Bridge at
South Fork Weber Creek Replacement Project (the project) by respondents El Dorado
County (County) and its board of supervisors (collectively respondents). The proposed
project is the replacement of an existing bridge. Petitioners Newtown Preservation
Society, an unincorporated association, and Wanda Nagel (collectively petitioners)
challenged the mitigated negative declaration, arguing, among other things, the project
may have significant impacts on fire evacuation routes during construction and, thus, the
County was required to prepare an environmental impact report. The trial court upheld
the mitigated negative declaration. Petitioners appeal.
Petitioners argue the trial court erred in upholding the mitigated negative
declaration because: (1) substantial evidence supports a fair argument of potentially
significant impacts on resident safety and emergency evacuation; (2) the County
impermissibly deferred analysis of temporary emergency evacuation impacts; (3) the
County impermissibly deferred mitigation of such impacts; and (4) the County deferred
analysis of impacts pertaining to construction of a temporary evacuation route.
In the published portion of this opinion, we explain that petitioners’ framing of the
fair argument test in terms of the project having “potentially significant impacts on
resident safety and emergency evacuation” is erroneous. The test is instead whether the
record contains substantial evidence that the project may have a significant effect on the
environment or may exacerbate existing environmental hazards. We conclude petitioners
have failed to carry their burden of showing substantial evidence supports a fair argument
of significant environmental impact in that regard.
In the unpublished portion of the opinion, we conclude the County did not
impermissibly defer mitigation and decline to consider the two remaining arguments.
Finding no merit in petitioners’ contentions, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
I
The Adopted Final Mitigated Negative Declaration
The hazards and hazardous materials section of the adopted final mitigated
negative declaration stated the project would “[i]mpair implementation of or physically
interfere with an adopted emergency response plan or emergency evacuation plan” and
“[e]xpose people or structures to a significant risk of loss, injury or death involving
wildland fires, including where wildlands are adjacent to urbanized areas or where
residences are intermixed with wildlands,” but such impacts would be less than
significant. As to the first impact, the County explained: “It is anticipated that Newtown
Road would be closed at the Project site with through traffic detoured to Fort Jim Road
during construction. The Fort Jim Road route is 0.6 miles longer than the Newtown Road
route, resulting in minimal delays to through traffic. The Old Fort Jim Road detour
would be approximately 3 miles in length and would require approximately 6 minutes.
Access will be provided and maintained to all residences adjacent to the Project area.
The County will prepare a detour plan in conjunction with the engineering plans. Project
construction activities would be coordinated with [the El Dorado County Sheriff’s Office
of Emergency Services (Emergency Services Office)] and [the El Dorado County Fire
Protection District (County Fire)] as described in Section 3.5.3 of this document.”
Section 3.5.3 provided, in pertinent part: “The contract plans will include a
temporary evacuation route located downstream from the Project area . . . . This
temporary evacuation route will cross South Fork Weber Creek downstream from the
proposed bridge, join the middle portion of the driveway at 4820 Newtown Road, and
then tie back into Newtown Road just upstream from the Project area. Installation of this
temporary evacuation route will require a temporary construction easement from the
owner of 4820 Newtown Road . . . . Prior to construction, the County will consult and
coordinate with the [Emergency Services Office] and [County Fire] regarding evacuation
3
of residents near the Project site in case of fire or other emergency. If the County
Department of Transportation (DOT), [Emergency Services Office], and County Fire
determine that the timing of construction (i.e., starting construction early in the year as
opposed to late in the year) and other conditions and factors warrant the construction of
the temporary evacuation route, the temporary evacuation route will be constructed in
conjunction with the full closure of Newtown Road. If County DOT, [the Emergency
Services Office], and County Fire determine that adequate options exist to evacuate
and/or shelter in place residents near the Project site in case of a fire or other emergency,
and the timing of construction and other conditions and factors do not warrant the
construction of the temporary evacuation route, the temporary evacuation route will not
be constructed.
“If the temporary evacuation route is constructed, it will only be used in the event
of an emergency that warrants an evacuation ordered by [the Emergency Services
Office].
“Regardless of whether or not the temporary evacuation route is constructed, any
evacuation order or shelter in place order from [the Emergency Services Office] will be
executed in whatever manner [the Emergency Services Office] deems appropriate for the
emergency that necessitates the evacuation. Since each emergency has its own unique set
of circumstances, it is not possible to predetermine the manner (or direction) any specific
resident will evacuate or shelter in place during a theoretical emergency. Rather, if an
emergency occurs, [the Emergency Services Office] will utilize its best practices to notify
the public and direct them to evacuate. Examples of best practices for evacuation
notification include reverse 911 calls and door-to-door notifications by Sheriff’s
deputies.”
As to the second impact, the County explained: “The completed Project will not
expose people or structures to a new or increased significant risk of loss, injury, or death
involving wildland fires. Project construction activities would be coordinated with local
4
law enforcement and emergency services providers as applicable. Project impacts are
less than significant and no mitigation is needed.”
In master response to comments number 3, the County responded to a letter
submitted by attorney Marsha Burch on behalf of Nagel, “assert[ing] that project
construction may prevent ‘a residential area (including over 100 homes) from having the
ability to effectively evacuate during a wildfire.’ ” The response stated: “First, there are
only 47 developed parcels that feed to Newtown Road between the two intersections with
Fort Jim Road. This is clearly shown by viewing publicly available mapping
websites . . . . There is no factual basis for the assertion that there are 100 homes that
might be precluded from evacuating effectively. Second, the County has consulted with
both the [Emergency Services Office] and [County Fire] regarding the proposed closure
of Newtown Road at the project site. Representatives from both [the Emergency Services
Office] and [County] Fire were comfortable with the County’s proposal to mitigate the
closure of Newtown Road.
“Decisions regarding evacuations are made by the [Emergency Services Office].
“The [mitigated negative declaration] includes a temporary emergency evacuation
route just downstream from the new bridge. As shown on pages 13 and 15 of the
[mitigated negative declaration], the temporary emergency evacuation route would be
constructed across Weber Creek downstream from the proposed bridge, onto parcel 077-
431-62 (Ms. Nagel’s property), and up Ms. Nagel’s driveway to Newtown Road, just east
of the project site. As was stated in the [mitigated negative declaration], if [the
Emergency Services Office] and the County determines [sic] that it is necessary to build
the temporary emergency evacuation route, the County will direct its construction
contractor to build it. If [the Emergency Services Office] and the County determine that
it is not necessary to build the temporary emergency evacuation route, then the County
will not direct its construction contractor to build it, thereby minimizing temporary
construction impacts to Ms. Nagel’s property and saving taxpayers tens of thousands of
5
dollars. The decision whether or not to build the temporary emergency evacuation route
will be primarily driven by the timing of construction. If construction starts in April or
May, it is less likely that the temporary emergency evacuation route will be needed, since
by the time fire season starts, construction will be advanced to a point where emergency
evacuation traffic would be able to be sent through the construction site. Conversely, if
construction starts later in the year, it is far more likely that the temporary emergency
evacuation route will be constructed.
“It is important to note that fires and other emergencies are unpredictable and may
require instantaneous changes to any plan for evacuation that is developed before the
emergency. The [mitigated negative declaration] did not initially discuss the plans in
great detail because it could lead people to believe that they should follow a certain
evacuation route when in fact the conditions of the actual emergency dictate a
modification to the plan. That said, in order to address the comments raised by
Ms. Burch, the County is providing more detail for two scenarios as follows:
“Scenario 1: Temporary Emergency Access Route Is Not Constructed
“The area of primary concern with respect to emergency evacuation is along
Newtown Road between the two intersections with Fort Jim Road. Newtown Road will
be closed at the project site for several months to allow for construction of the new
bridge. This will preclude access to the easterly intersection of Newtown and Fort Jim
for evacuation purposes for 47 developed parcels. Therefore, if a fire occurs that
necessitates the evacuation of the Newtown Road corridor between the Fort Jim
intersections, evacuation will need to occur through the westerly intersection of Newtown
and Fort Jim.
“If a fire blocks Newtown Road east of the westerly intersection of Newtown and
Fort Jim such that the westerly intersection of Newtown and Fort Jim cannot be used as
an evacuation route, [the Emergency Services Office] will use other options to evacuate
residents, including but not limited to the following:
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“1. If site conditions allow, access through the project site to evacuate to the east.
“2. Use of an inactive road that connects the driveway at 4550 Newtown Road
with the driveway at 3705 Fort Jim Road. This will allow Newtown Road residents to
evacuate to Fort Jim Road with the option to then go to either Pleasant Valley or
Placerville. This road has been inspected by [the Emergency Services Office] and can
accommodate ingress for emergency vehicles and egress for evacuees.
“3. Use of Paso Way to connect to Deer Canyon Road, Pioneer Hill Road, and
Newtown Road.
“4. Use of Green Canyon Court to connect to Deer Canyon Road, Pioneer Hill
Road, and Newtown Road.
“5. Use of Paso Way to connect to Deer Canyon Road, Weber Reservoir Road,
and Snows Road (vehicles without trailers only).
“6. Use of Paso Way to connect to 4701 Paso Court and surrounding area, where
[the Emergency Services Office] has determined that there is sufficient clear space to
allow for sheltering in place. Should sheltering in place be required, it will be
implemented by [the Emergency Services Office] with support from on-scene firefighting
assets adequate to protect all evacuees present.
“Scenario 2: Temporary Emergency Evacuation Route Is Constructed
“The area of primary concern with respect to emergency evacuation is along
Newtown Road between the two intersections with Fort Jim Road. Newtown Road will
be closed at the project site for several months to allow for construction of the new
bridge. However, in this scenario, if fire blocks access to the westerly intersection of
Newtown and Fort Jim, the temporary emergency evacuation route will open, allowing
evacuation egress through the site to points east and south. In addition, [the Emergency
Services Office] may contemplate use of options 2 through 6 listed under Scenario 1.”
7
II
The Litigation
Petitioners filed a petition for writ of mandate challenging the County’s adoption
of the final mitigated negative declaration. In their opening trial brief in support of the
petition for writ of mandate, petitioners raised two arguments: (1) respondents abused
their discretion by failing to properly assess the no-project alternative; and
(2) respondents abused their discretion by failing to adequately address the impact of
closing the bridge without committing to construction of an evacuation route in the event
of fire. Pertinent to the issues raised in this appeal, as the trial court explained,
“Petitioners essentially contend[ed] that there is substantial evidence in the record to
support a fair argument that . . . the project will have a significant impact on public safety
in that the bridge will be closed without [the] County committing to construction of a
sufficient evacuation route in the event of fire while the bridge is being replaced leaving
Newtown bridge unavailable for evacuation of homes in the vicinity; and the many
alternative evacuation plans set forth in the [mitigated negative declaration] are
insufficient to mitigate the impact of the project that area residents will be exposed to the
dangers of wildfires without evacuation during the closure of the bridge.”
The trial court issued a detailed and extensive tentative ruling finding no merit in
petitioners’ arguments. The trial court thereafter adopted its tentative ruling, denied the
petition for writ of mandate, entered judgment in favor of respondents, and awarded
respondents their reasonable costs of suit subject to filing a timely memorandum of costs
and the outcome of any timely motion to strike or tax costs.
Petitioners appeal. The trial court’s ruling on the issues pertinent to this appeal are
set forth in the Discussion that follows.
8
DISCUSSION1
I
The Fair Argument Test
A
Applicable Legal Principles
“ ‘With certain limited exceptions, a public agency must prepare an
[environmental impact report] whenever substantial evidence supports a fair
argument that a proposed project “may have a significant effect on the environment.”
[Citations.] “ ‘Significant effect on the environment’ means a substantial, or potentially
substantial, adverse change in the environment.” ’ ” (Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 927.) “If there is substantial evidence in the
whole record supporting a fair argument that a project may have a significant
nonmitigable effect on the environment, the lead agency shall prepare an [environmental
impact report], even though it may also be presented with other substantial evidence that
1 We address only the arguments raised by appropriate headings in the argument
portion of petitioners’ briefs. In the procedural history portion of petitioners’ opening
brief, they note several disagreements with the trial court’s ruling and appear to raise
arguments as to the merits of the statements made in and procedure of adopting the final
mitigated negative declaration. We do not address those contentions. “Failure to provide
proper headings forfeits issues that may be discussed in the brief but are not clearly
identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
Petitioners also for the first time argue in their reply brief that the evacuation
options described in master response to comments number 3 were not properly
incorporated into the mitigated negative declaration and were not made available for
public comment. As noted herein, the trial court relied upon the evacuation options
discussed in master response to comments number 3 in its written ruling, yet petitioners
did not raise this argument in the trial court or in its opening brief in this appeal. We thus
do not consider the argument. (American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 275 [“We will not ordinarily consider issues
raised for the first time in a reply brief”].)
9
the project will not have a significant effect.” (Ibid.) “ ‘Substantial evidence’ means
‘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.’ [Citation.] Substantial evidence ‘shall include facts, reasonable
assumptions predicated upon facts, and expert opinion supported by facts.’ [Citation.]
‘Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly
erroneous or inaccurate, or evidence of social or economic impacts which do not
contribute to or are not caused by physical impacts on the environment does not
constitute substantial evidence.’ ” (Id. at pp. 927-928.) “ ‘Complaints, fears, and
suspicions about a project’s potential environmental impact likewise do not constitute
substantial evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San
Bernardino (2016) 1 Cal.App.5th 677, 690.)
“ ‘Members of the public may . . . provide opinion evidence where special
expertise is not required. [Citations.]’ [Citation.] However, ‘[i]nterpretation of technical
or scientific information requires an expert evaluation. Testimony by members of the
public on such issues does not qualify as substantial evidence. [Citations.]’ [Citation.]
‘[I]n the absence of a specific factual foundation in the record, dire predictions by
nonexperts regarding the consequences of a project do not constitute substantial
evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San Bernardino,
supra, 1 Cal.App.5th at pp. 690-691.)
“The fair argument standard is a ‘low threshold’ test for requiring the preparation
of an [environmental impact report]. [Citations.] It is a question of law, not fact, whether
a fair argument exists, and the courts owe no deference to the lead agency’s
determination. Review is de novo, with a preference for resolving doubts in favor of
environmental review.” (Pocket Protectors v. City of Sacramento, supra, 124
Cal.App.4th at p. 928.) “Although our review is de novo and nondeferential, however,
we must ‘ “giv[e] [the lead agency] the benefit of [the] doubt on any legitimate, disputed
10
issues of credibility.” ’ [Citation.] The lead agency has discretion to determine whether
evidence offered by the citizens claiming a fair argument exists meets [the Act’s]
definition of ‘substantial evidence.’ ” (Ibid.)
On appeal, an appellant has the burden to demonstrate by citation to the record the
existence of substantial evidence supporting a fair argument of significant environmental
impact. (Joshua Tree Downtown Business Alliance v. County of San Bernardino, supra,
1 Cal.App.5th at p. 688.)
B
The Trial Court’s Ruling
The trial court’s written ruling on the fair argument issue stated: “In support of
th[e fair argument test] petitioners cited to the following evidence in the administrative
record: correspondence from attorney Marsha Burch on behalf of petitioner Nagel, dated
August 3, 2018 [citations]; retired CalFire aerial firefighter James Barnes’ letter to the
County urging that the project be disapproved [citation]; local resident Lisa Souza’s
comments at a . . . hearing on the mitigated negative declaration [citation]; comments by
local resident Bonnie Robertson at a . . . hearing on the mitigated negative declaration
[citation]; and petitioner Nagel’s comments at a . . . hearing on the mitigated negative
declaration [citation]. Petitioners also cited for the first time in the reply a portion of Rod
Souza’s statements during the . . . hearing. [Citation.]
“Resident Lisa Souza stated at the hearing: ‘My name is Lisa Souza. I live at . . .
Newtown Road. I have sent a letter to all of you that included the picture of the fire that
happened on the 17th. A pole went down. It was hit, went down on Newtown Road,
crossed the road, blocked the road, live wires. The fire started across from our home.
We-we would have been able to get out perhaps, but everybody else between us and
where the bridge is going to go would be trapped. And the fire department had to go all
the way around to that side of where the fire was, and they would not have been able to
get through if that road was closed. Now, this is something very, very serious and I’m a
11
little emotional about it but, uh, there are a lot of people that live up there, and we’re
really worried about the fire situation because of our canyon. So, I would like you to
really that [sic] put that into your hearts and minds when you’re considering this project
and how it impacts those of us who live in that canyon.’ [Citation.]
“Resident Bonnie Robertson stated at the hearing: ‘No clear evaluation [sic] route
has been determined for access prior to the approval of this project. The county report
states that “transportation will consult and coordinate with [the Emergency Services
Office] and County Fire.” The discussion goes on that “if a route is not determined, that
regardless of whether or not the temporary evacuation route is constructed, any
evaluation [sic] order or shelter in place order from [the Emergency Services Office] will
be executed in whatever manner [the Emergency Services Office] deems appropriate.”
This is an undetermined evacuation route which is not acceptable.’ [Citation.]
“Petitioner Nagel stated at the hearing: ‘I have 15 years fighting wildfires from
the air. I am also a widow of a fallen aerial firefighter. I probably have fought between
500 and 1000 wildland fires. I was initial attack. That meant that my job was to be there
when it started as soon as possible and to get resources on it, to stop it while it’s small.
Therefore, we don’t have the conflagration that we see today. I have been at this board
meeting several times talking to you about our lack of resources from the air have [sic]
been cut back to probably about maybe 15% of what they were in the previous 15 to 20
years. Our fires are getting bigger. The conditions are getting worse, and initial attack is
something that is primary to the saving of lives and property. This project, among other
things that it does, is it put forth a very flawed fire evacuation route. Part of the route
when the county says they’re going to take care of it is going to construct a secondary
bridge across Newtown Road down into my meadow and shuffle people out to the east.
Sounds good on paper. In reality, the road is 20 feet above the creek and my meadow.
Now, I would like to see the construction of this bridge that is going to support all the
scared public as they try to get out in the dark to evacuate this area. I remember when the
12
county okayed the approval of repairing Newtown Road by Hooker Construction. I was
here then too asking you to stop doing this in the middle of a fire season.’ [Citation.]
“Retired CalFire aerial firefighter James Barnes’ letter to the County stated: ‘For
the last 35 years I have served as an aerial firefighter throughout the western states and
North Carolina flying both the large DC-4 and DC-6 airtankers and the Grumman S-2T
airtanker for CALFIRE. For several years I was based at the Grass Valley and Columbia
Air Attack Bases. I have fought fires throughout all of the foothills of California and I
have witnessed the destruction of many communities with the associated loss of life and
property. I would like to express my concerns about the proposed road project at
Newtown road in the bottom of the canyon just East of Placerville. During a wildfire,
evacuation or rescue of Citizens adjacent to this road would be problematic at best and
the entrapment of large numbers of residents is likely. The proposed road project would
block one of the primary escape routes from the canyon for at least one full fire season
and possibly two. The prospect of having many casualties produced by a wildland fire
should be all to obvious. ¶ In view of the catastrophes that have resulted from the
Paradise fire and the Santa Rosa, Napa fires it would be gross negligence to ignore the
danger posed to the Citizens on this deep canyon East of Placerville. Provisions must be
made to keep the escape routes open during fire season to protect the lives of Citizens
trying to escape a deadly fast-moving firestorm. ¶ I hope you will give this dire situation
your most earnest consideration and arrive at a plan that will protect the Citizens and
taxpayers of Placerville from the death and destruction that a firestorm will produce.’
[Citation.]
“Attorney Marsha Burch stated the following in correspondence on behalf of
petitioner Nagel [citation]: ‘Another overarching concern in this case is the fact that the
[mitigated negative declaration] ignores potentially significant adverse impacts as a result
of preventing a residential area (including over 100 homes) from having the ability to
effectively evacuate during a wildfire. According to the [mitigated negative declaration],
13
residents may be left without any emergency evacuation route, or one might be created,
with the only exit being to the west for at least one full fire season, and like many
construction projects, it is entirely possible it could be for two or more seasons.
[Citation.] The [mitigated negative declaration] ignores the fact that in the Project area
fires generally move from west to east, and so these residents could be trapped during a
wildfire. The [mitigated negative declaration] also says that any analysis or decisions on
this will be made later. This is no small matter. The County has not even bothered to
consult with the [Emergency Services Office] and [County Fire], but claims it will do so
before construction, and that whatever they come up with will be good enough.
[Citation.] This is not mitigation, this is deferral of analysis and it could lead to the tragic
deaths of County residents because the County does not want to go through the trouble to
determine how this impact can be mitigated (if at all) before approving the Project. ¶
This is absolutely unacceptable and in blatant violation of [the Act], not to mention an
appalling stance for a public agency to take. It would be nice to have each of the County
decision makers answer the question on the record whether this ‘we will figure it out
later’ approach would be acceptable to them if this was their neighborhood. During the
deadly fires that are presently raging across California, killing people in their homes, is it
really okay to speculate about this? To say, maybe these folks can just “shelter in place”?
The obvious answer is, no.’ [Citations.]
“Resident Rod Souza stated at the . . . hearing: ‘. . . If we had that large wind and
blow, which we’ve had in that canyon since we’ve been there almost 12 years now, a
number of times where it really blows. If that happened, we would have had another
small, obviously not as well populated as-as [sic] Paradise. So that’s something I’m very
concerned about and would like to make sure that we have the plans of what’s going to
happen if -- to me, there should be a -- considered in the construction some type of
temporary way around that construction site so that you can get through which would
14
help solve that problem, but otherwise you’re struck in a box canyon. Those are my
concerns. Thank you.’ [Citation.]”
The trial court further quoted from the master response to comments number 3 and
considered “the statements of John Kahling of the County Department of Transportation
[citation] during the . . . hearing. He stated: he spoke with Tim Cordero at County Fire
and [Emergency Services Office] professionals wherein it was determined that given the
canyon’s North facing prominence and working in the very early part of fire season in
April through July, they were very comfortable with the idea the temporary evacuation
route not being built; if something happens to delay commencement of the project
resulting in starting the project in July or August, the temporary evacuation route will be
built and operational in case it is needed; specific evacuation alternatives were set forth at
the hearing; the [Emergency Services Office] staff went out to the site, walked the
evacuation route designated on the Souza property, up to the PG&E easement towards
Fort Jim Road and confirmed that fire apparatus can make it up and down that hill;
another alternative was to make Newtown passable and if it is not possible to do that and
get everyone out to the PG&E easement to Fort Jim Road, there are opportunities to
shelter in place on Paso Way with firefighting assets adequate to protect the people there;
in response to the comments that were seeking more detail about evacuation the County
has provided the list of evacuation routes; and based upon that list, the County’s analysis,
the County’s work with [the Emergency Services Office], and discussions with . . .
County Fire there is no factual basis to the comments about evacuation, or they are not
credible.”
The trial court further noted “Supervisor Frentzen acknowledged at the . . .
meeting that the response to public comments ‘was very detailed, to the point, and I also
see our [Emergency Services Office] staff here, supporting that, [sic] plan for evacuation
and emergency cases.’ ”
15
The trial court found: “Residents Lisa Souza’s and Rod Souza’s comments are
merely expressing a concern about the respondent County providing for evacuation of the
project area residents in the event of a fire during the closure of the Newtown Road
bridge for the project. It is not substantial evidence raising a fair argument that despite
setting forth the fire evacuation impact arising from the project’s closure of Newtown
Road bridge for a period of time during construction and the mitigation by planning for
multiple evacuation routes, there remains a significant impact to the safety of the area
residents even when considering the statements of Mr. Kahling during the County Board
meeting . . . and the evacuation options described in the [mitigated negative declaration]
including the ones stated in Master Response Comments Number 3. The comments
failed to set forth any facts concerning the many plans for evacuation set forth in detail in
the [mitigated negative declaration] that would give rise to a reasonable assumption that
despite all these alternative evacuation plans, the impact of closing the bridge remained
significant. Complaints, fears, and suspicions about a project’s potential environmental
impact do not constitute substantial evidence. Mere argument, speculation or
unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair
argument.
“Resident Bonnie Robertson’s comment that no clear emergency evacuation route
has been determined prior to the approval of this project was also fully addressed by the
mitigation explained in the [mitigated negative declaration’s] Master Response to
Comments Number 3. The statement is not substantial evidence raising a fair argument
that despite setting forth the fire evacuation impact arising from the project’s closure of
Newtown Road bridge for a period of time during construction and the mitigation by
planning for multiple evacuation routes, there remains a significant impact to the safety
of the area residents even when considering the statements of Mr. Kahling during the
County Board meeting . . . and the evacuation options described in the [mitigated
negative declaration], including the ones stated in Master Response to Comments
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Number 3. The comments failed to set forth any facts concerning the many plans for
evacuation set forth in detail in the [mitigated negative declaration] that would give rise
to a reasonable assumption that despite all these alternative evacuation plans, the impact
of closing the bridge remained significant. . . .
“Petitioner Nagel’s comments concerning the lack of resources to attack wildfires
from the air is not an environmental impact that [the Act] requires to be mitigated. . . . [¶]
In addition, petitioner Nagel’s opinion that mitigation by construction of a temporary
evacuation route is a very flawed fire evacuation route, because it is unlikely to support
all the scared public as they try to get out in the dark to evacuate this area is not an
opinion of an expert in construction and ground evacuation routes. Petitioner Nagel has
not set forth any facts to establish she is an expert in the construction of ground
evacuation routes . . . and her comments amount to mere argument, speculation, and
improper opinion that is not substantial evidence supporting a fair argument of a
significant environmental impact despite mitigation. Furthermore, her comments did not
discuss the many plans for evacuation set forth in the [mitigated negative declaration] and
failed to set forth any facts concerning the many plans for evacuation that would give rise
to a reasonable assumption that despite all these alternative evacuation plans, the impact
of closing the bridge remained significant. . . .
“Attorney Marsha Burch’s comments on behalf of petitioner Nagel also lacks facts
establishing that petitioner Nagel and attorney Burch are experts in construction and
ground evacuation routes, therefore, any opinion as to the sufficiency of the construction
of a temporary evacuation route or that there are insufficient evacuation routes amount to
mere argument, speculation, and improper opinion that is not substantial evidence
supporting a fair argument of a significant environmental impact despite mitigation. . . .
“Attorney Burch’s comments that wildfire evaluation routes have not been
determined or only one western evacuation route that may not be constructed has been
designated prior to the approval of this project was also fully addressed by the mitigation
17
explained in Master Response to Comments Number 3 and the statements of
Mr. Kahling . . . . Attorney Burch’s comments are not substantial evidence raising a fair
argument that despite setting forth the fire evacuation impact by the project’s closure of
Newtown Road bridge for a period of time during construction and the mitigation by
planning for multiple evacuation routes, there remains a significant impact to the safety
of the area residents even when considering the statements of Mr. Kahling . . . and the
evacuation options described in the [mitigated negative declaration], including the ones
stated in Master Response to Comments Number 3. The comments failed to set forth any
facts concerning the many plans for evacuation set forth in detail in the [mitigated
negative declaration] that would give rise to a reasonable assumption that despite all
these alternative evacuation plans, the impact of closing the bridge remained significant.
Complaints, fears, and suspicions about a project’s potential environmental impact do not
constitute substantial evidence. . . .
“Attorney Burch’s comment that the County has not even bothered to consult with
the [Emergency Services Office] and [County Fire] was addressed in [Kahling’s
statements during the hearing]. [¶] Attorney Burch’s legal opinions that the evacuation
routes specified are not mitigation and there is a deferral of analysis are not admissible
substantial evidence of a fair argument that there remains a significant environmental
impact even with the evacuation routes specified by the County in the [mitigated negative
declaration]. [Citation.]
“Retired CalFire aerial firefighter James Barnes’ letter to the County states an
opinion that during a wildfire, evacuation or rescue of Citizens adjacent to this road
would be problematic at best and the entrapment of large numbers of residents is likely;
and the proposed road project would block one of the primary escape routes from the
canyon for at least one full fire season and possibly two. Mr. Barnes has not set forth any
facts to establish he is an expert in ground evacuation routes and, therefore, any opinion
as to the sufficiency of the ground evacuation routes amount to mere argument,
18
speculation, and improper opinion that is not substantial evidence supporting a fair
argument of a significant environmental impact despite mitigation. Furthermore, his
comments did not discuss the many plans for evacuation set forth in the [mitigated
negative declaration] and failed to set forth any facts concerning the many plans for
evacuation that would give rise to a reasonable assumption that despite all these
alternative evacuation plans, the impact of closing the bridge remained significant. . . .
“In summary, petitioners have not cited substantial evidence in the record that
raises a fair argument that this project may have a significant non-mitigated impact on the
environment due to failure to provide adequate evacuation routes for project area
residents during a wildfire or other emergency during construction of the project.”
C
Petitioners Have Failed To Carry Their Burden Of Showing Substantial Evidence
Supports A Fair Argument Of Significant Environmental Impact
Petitioners assert the public comments and observations by Nagel, Barnes, the
Souzas, and Bernard Ross2 constitute substantial evidence supporting “the fair argument
that the project would have potentially significant impacts on resident safety and
emergency evacuation.” We disagree that the fair argument standard has been met.
To start, petitioners’ framing of the fair argument test is erroneous. The question
is not whether substantial evidence supports a fair argument that the proposed project will
have significant impacts on resident safety and emergency evacuation. As explained
ante, the question is whether the project may have a significant effect on the environment.
(South Orange County Wastewater Authority v. City of Dana Point (2011) 196
2 In their reply trial brief, petitioners relied on a comment from Ross “stating that
closure of Newtown Road would make it difficult for first responders to gain access to
the area: ‘Law enforcement cannot overcome a poorly designed road. I have experience
in that . . . .’ ” The trial court did not address this comment.
19
Cal.App.4th 1604, 1615.) The questions in the sample checklist in appendix G to the
Act’s guidelines3 -- including, whether the project would expose people or structures to a
significant risk of loss, injury, or death involving wildland fires -- do not extend “the
[environmental impact report] requirement to situations where the environment has an
effect on a project, instead of the other way around.” (South Orange County Wastewater
Authority, at p. 1616.) The Act further “does not generally require an agency to analyze
how existing hazards or conditions might impact a project’s users or residents,” unless
the project might exacerbate existing environmental hazards. (California Building
Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392.)
Thus, the question before us is whether the residents’ comments upon which petitioners
rely (given their burden on appeal) constitute substantial evidence supporting a fair
argument that the project may have a significant effect on the environment or may
exacerbate existing environmental hazards. We conclude the comments relied upon do
not constitute substantial evidence in that regard.
First, petitioners argue the Souzas discussed their past experiences with wildfires
in the area and explained that people would be trapped during construction of the project
if a fire occurred to the west of their property. The Souzas’ statements relate to how
existing wildfire hazards might impact residents during the project’s construction and do
not support a fair argument that the project may have a potentially significant effect on
the environment or may exacerbate existing environmental hazards, i.e., “effects that
arise because the project brings ‘development and people into the area affected.’ ”
(California Building Industry Assn. v. Bay Area Air Quality Management Dist., supra, 62
3 The guidelines are regulations for the implementation of the Act codified in title
14, section 15000 et seq. of the California Code of Regulations, which have been
developed by the Office of Planning and Research and adopted by the Secretary of the
Natural Resources Agency. (Pub. Resources Code, § 21083.)
20
Cal.4th at p. 388.) Petitioners further fail to identify any factual foundation for the
Souzas’ assertion. “ ‘[I]n the absence of a specific factual foundation in the record, dire
predictions by nonexperts regarding the consequences of a project do not constitute
substantial evidence.’ ” (Joshua Tree Downtown Business Alliance v. County of San
Bernardino, supra, 1 Cal.App.5th at p. 691.)
Second, petitioners argue Barnes expressed “concerns about the lack of an
emergency evacuation route during Project construction” and said, in his opinion,
evacuation would be “ ‘problematic at best and the entrapment of large numbers of
residents is likely’ because the Project would ‘block one of the primary escape routes’
from the Project area.” Petitioners fail to identify any factual foundation for Barnes’s
assertion that a large number of people would likely be trapped during an evacuation
given the existence of the evacuation routes and options identified in the record. That
assertion is thus mere speculation and does not constitute substantial evidence. Further,
petitioners fail to explain how Barnes’s comments support a fair argument that the project
may have a potentially significant effect on the environment or may exacerbate existing
environmental hazards. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 153 [we disregard arguments that fail to disclose the reasoning by
which the appellant reached the conclusions he, she, or it asks us to adopt].) Finally, as
the trial court correctly noted, Barnes did not set forth any facts to establish that he is an
expert in ground evacuation routes. A lay person’s opinion based on technical
information that requires expertise does not qualify as substantial evidence. (Joshua Tree
Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at pp.
690-691.) Indeed, as the County noted, it had consulted with the Emergency Services
Office and County Fire, agencies with expertise in emergencies and evacuation, and the
agencies “were comfortable with the County’s proposal to mitigate the closure of
Newtown Road” through the evacuation routes and options described. While petitioners
21
note that Barnes is a retired aerial firefighter, they identify no evidence in the record
establishing he has experience in determining, directing, or effecting evacuation routes.
Third, as to Ross, petitioners assert he commented that he would be a victim when
a fire starts because they would be trapped with no way out and “detailed his personal
experiences with wildfires in the area, how fast they can move and how slow responses
can be.” Like the prior comments relied upon, Ross’s statements relate to how existing
wildfire hazards might impact residents during the project’s construction; petitioners do
not explain how these comments support a fair argument that the project may have a
potentially significant effect on the environment or may exacerbate existing
environmental hazards. Further, petitioners fail to identify any factual foundation for
Ross’s assertion that he would be trapped in the event of a fire and, as such, the statement
is mere speculation and does not constitute substantial evidence.
Finally, petitioners rely on Nagel’s comments that “fires in the area have
historically moved west to east, which prevents evacuation to the west”4 and “[t]hus,
while the Newtown Bridge is under construction, residents would not have an emergency
evacuation route.” Further, Nagel stated the project “included a ‘very flawed [temporary]
fire evacuation route’ ” and “a prior similar project had been constructed during fire
season, limiting the emergency routes for local residents.” Like the other comments
relied upon, Nagel’s comments do not amount to substantial evidence under the fair
argument test.
Petitioners fail to explain the pertinence of the west-to-east fire movement
comment in relation to the evacuation routes and options identified in the record.
Further, Nagel’s unsubstantiated comment that residents would not have an emergency
evacuation route is directly contradicted by the evacuation routes and options identified
4 This comment was actually made by Burch, who represented Nagel.
22
in the record, and petitioners do not explain how the project may have a potentially
significant effect on the environment or may exacerbate existing environmental hazards
in light of those routes and options. Petitioners also do not identify the factual basis and
foundation for Nagel’s assertions and fail to explain how Nagel’s statement that a prior
similar project had been constructed during the fire season and had limited emergency
routes for residents is pertinent to the consideration of this project’s potential
environmental impacts. For example, there was no comparison provided between the
evacuation routes proposed for the prior project as compared to this project; nor is there
any discussion as to how the alleged limited emergency routes in the prior project
resulted in a significant impact. Moreover, while petitioners note Nagel is an
experienced firefighter, they do not argue that she has experience in determining,
directing, or effecting evacuations. Accordingly, Nagel’s lay opinion based on technical
information that requires expertise does not constitute substantial evidence. (Joshua Tree
Downtown Business Alliance v. County of San Bernardino, supra, 1 Cal.App.5th at
pp. 690-691.)
Contrary to petitioners’ assertion, the public comments petitioners rely upon are
not analogous to the public comments constituting substantial evidence in Arviv, Oro
Fino, and Protect Niles. (Citing Arviv Enterprises, Inc. v. South Valley Area Planning
Com. (2002) 101 Cal.App.4th 1333; Oro Fino Gold Mining Corp. v. County of El
Dorado (1990) 225 Cal.App.3d 872; Protect Niles v. City of Fremont (2018) 25
Cal.App.5th 1129.) In Arviv, the public comments related to personal observations of
impacts that had actually occurred from similar projects in the past. (Arviv Enterprises,
Inc., at pp. 1347-1348.) In Oro Fino, numerous residents testified regarding the noise
they had experienced during the operation of a similar mineral exploration drilling project
and numerous residents provided evidence of their experiences with the increase in traffic
and traffic mishaps. (Oro Fino Gold Mining Corp., at pp. 882, 883.) In Protect Niles,
residents commented as to the aesthetic incompatibility of the project and the traffic
23
safety hazards that would result from the project due to excessive queueing, a tendency of
westbound drivers to exceed the posted speed limit, and limited visibility around a 90-
degree curve. (Protect Niles, at pp. 1146, 1151.) As to the traffic impacts, the court
explained that “[r]esidents’ personal observations of traffic conditions where they live
and commute may constitute substantial evidence even if they contradict the conclusions
of a professional traffic study,” especially when, as in that case, “residents cite specific
facts that call into question the underlying assumptions of a traffic study.” (Id. at
p. 1152.)
Petitioners assert “[t]he common thread between Arviv, Oro Fino, and Protect
Niles is that the subject matters local residents opined on would appear to be the types of
impacts were [sic] some level of expertise would be necessary.” Not so. The common
thread of those cases is that lay testimony may constitute substantial evidence when the
personal observations and experiences directly relate to and inform on the impact of the
project under consideration. In contrast to the public comments in those three cases,
here, the comments lacked factual foundation and failed to contradict the conclusions by
agencies with expertise in wildfire evacuations with specific facts calling into question
the underlying assumptions of their opinions as it pertained to the project’s potential
environmental impacts. While petitioners assert that the residents’ “[p]ast experiences
with fires indicate that fires to the west of the Project area make using Newtown Road
Bridge the only viable evacuation route,” the comments relied upon do not establish that
fact, nor do petitioners cite to the record in support of this assertion. (Italics added.)
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [“ ‘[i]f a party fails to support an
argument with the necessary citations to the record, . . . the argument [will be] deemed to
have been [forfeit]ed’ ”].)
Finally, petitioners argue that “[t]he County failed to properly reject the public
comments as non-credible evidence, because it did not ‘ [“]first identify that evidence
with sufficient particularity[”] ’ to demonstrate adequate credibility analysis.” (Quoting
24
Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 208.) We do
not address this argument in light of our conclusion that petitioners failed to identify
substantial evidence to support a fair argument that the project may have a significant
impact on the environment or may exacerbate existing environmental hazards.
II
Deferred Mitigation
A
Applicable Legal Principles
“Generally, it is improper to defer the formulation of mitigation measures.
[Citations.] However, an exception to this general rule applies when the agency has
committed itself to specific performance criteria for evaluating the efficacy of the
measures to be implemented in the future, and the future mitigation measures are
formulated and operational before the project activity that they regulate begins.” (Center
for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210,
239.) Generally, “ ‘ “[i]mpermissible deferral of mitigation measures occurs when an
[environmental impact report] puts off analysis or orders a report without either setting
standards or demonstrating how the impact can be mitigated in the manner described in
the [environmental impact report].” [Citation.]’ [Citation.]
“ ‘[W]hen, for practical reasons, mitigation measures cannot be fully formulated at
the time of project approval, the lead agency may commit itself to devising them at a later
time, provided the measures are required to “satisfy specific performance criteria
articulated at the time of project approval.” [Citation.] In other words, “[d]eferral of the
specifics of mitigation is permissible where the local entity commits itself to mitigation
and lists the alternatives to be considered, analyzed and possibly incorporated in the
mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply
requires a project applicant to obtain a biological report and then comply with any
recommendations that may be made in the report. [Citation.]” [Citation.]
25
“ ‘In sum, “it is sufficient to articulate specific performance criteria and make
further [project] approvals contingent on finding a way to meet them.” [Citation.]
Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended
performance criteria. Deferred mitigation measures must ensure that the applicant will be
required to find some way to reduce impacts to less than significant levels. If the
measures are loose or open-ended, such that they afford the applicant a means of
avoiding mitigation during project implementation, it would be unreasonable to conclude
that implementing the measures will reduce impacts to less than significant levels.’ ”
(Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234
Cal.App.4th 214, 240-241.)
B
The Trial Court’s Ruling
As to the deferred mitigation argument, the trial court’s written ruling provided:
“Seizing on the language in the [mitigated negative declaration] that if timing of the
construction and other conditions and factors do not warrant construction of the
temporary evacuation route, it will not be constructed [citation], petitioners contend that
this amounts to deferral of mitigation. Petitioners ignore the portion of the [mitigated
negative declaration] on that same page that commits the County to contract for the
temporary evacuation route and only prior to construction will the final decision to
construct it be made in consultation with [the Emergency Services Office] and . . .
County Fire and that it will not be built in connection with full closure of Newtown Road
only if the timing of construction falls outside the normal fire season and other conditions
and factors lead to [sic] the County, [the Emergency Services Office], and . . . County
Fire to determine adequate options exist to evacuate and/or shelter in place residents near
the project site in the event of fire or other emergency. Petitioners also ignore Master
Response to Comments Number 3, which addresses comments related to emergency
evacuation of residents wherein the County expressly states that the decision of whether
26
to build the temporary evacuation route will be primarily driven by the timing of
construction, such as if construction starts in April or May it is less likely that the route
will be needed, because by the time fire season starts, construction will be advanced to
the point where emergency evacuation traffic would be able to be sent through the
construction site and if construction starts later in the year, it is far more likely the
temporary evacuation route will be constructed [citation]; that if the temporary
evacuation route is not constructed there is no easterly evacuation route, then evacuation
will occur through the westerly intersection of Newtown and Fort Jim Roads and if the
fire blocks Newtown Road east of that westerly intersection such that it can not [sic] be
used, there are six other specifically designated routes for evacuation, with one route
designed for evacuation and sheltering in place with on-scene firefighting assets adequate
to protect all evacuees that [sic] are present [citation]; and that if the temporary
emergency evacuation route is constructed, the temporary evacuation route will be
opened if the fire blocks access to the westerly intersection of Newton [sic] and Fort Jim
Roads allowing egress through the project site to points east and south with [the
Emergency Services Office] contemplating the additional use of the other specified
evacuation route options, except for the option to go through the project site at the bridge,
because it will be closed [citation].”
After citing the pertinent law, the trial court found: “The record establishes that
the respondent County has identified multiple mitigation measures related to evacuation
routes, including the possibility of construction of a temporary evacuation route which
sets forth as the primary consideration for constructing the temporary evacuation route as
whether the closure of the bridge occurs during the fire season, and the County has
committed to mitigating the impact of closure of the bridge in relation of [sic] fire and
emergency evacuations during the project’s construction. The record establishes that
there is no impermissible deferral of the mitigation measures designed to reduce the
impact of the project on the risk of project area residents being exposed to a significant
27
risk of loss, injury or death from wildfires to a less than significant impact by setting
forth multiple specific planned routes for evacuation.”
C
The County Did Not Impermissibly Defer Mitigation
Petitioners assert “[t]he County’s assumption that the Project would not have a
significant impact, while failing to commit to any mitigation, is improper deferral of
mitigation.” They argue the “County failed to establish specific performance criteria at
the time of approval” because it “refused to commit itself to any course of action” and did
not “provide a definitive time table or a specific trigger for construction of the temporary
emergency evacuation route.” In that regard, petitioners believe Agoura is analogous.
(Citing Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665.)
In the pertinent portion of the Agoura decision upon which petitioners rely, the
court considered the project’s potential impacts to cultural resources. (Save Agoura
Cornell Knoll v. City of Agoura Hills, supra, 46 Cal.App.5th at pp. 686-690.) The City
of Agoura Hills did not dispute that the project might have significant impacts on cultural
resources and that mitigation was required to reduce the impacts to less than significant.
(Id. at p. 686.) The city argued, however, that two mitigation measures were sufficient to
ensure that an identified prehistoric archaeological site at the project would be avoided
and undisturbed because the first measure “mandate[d] that ‘the tribal cultural resources
w[ould] be preserved in place,’ while [the second mitigation measure] require[d] the
completion of a data recovery program if ‘preservation [became] impossible.’ ” (Id. at
p. 687.)
The appellate court disagreed, stating, “[c]ontrary to their contention, . . . neither
of these measures [were] designed to ensure avoidance of [the prehistoric archaeological
site] as a tribal cultural resource.” (Save Agoura Cornell Knoll v. City of Agoura Hills,
supra, 46 Cal.App.5th at p. 687.) The court explained: “[The first mitigation measure]
provide[d] for the monitoring of ground-disturbing activities with allowances for work
28
stoppages so that ‘appropriate actions’ c[ould] be taken for any significant archeological
or paleontological resources that [were] discovered at the site. [The second mitigation
measure] in turn provide[d] for a . . . data recovery excavation program prior to any
project-related ground disturbance ‘[i]f avoidance of [the prehistoric archaeological site
was] not possible.’ ” (Ibid.) The mitigated negative declaration did not, however, set
forth any analysis of whether the prehistoric archaeological site could be avoided and did
not specify any performance criteria for evaluating the feasibility of avoidance as an
alternative to excavation. (Ibid.) The city never attempted to define the boundaries of
the prehistoric archaeological site and never made a finding that it was impractical or
infeasible to do so. (Ibid.) “On the other hand, the record contain[ed] substantial
evidence to support a fair argument that avoidance of [the prehistoric archaeological site
was] not feasible based on the existing project footprint.” (Id. at p. 688.)
The appellate court explained that the second mitigation measure, which would be
implemented if avoidance of the prehistoric archaeological site was infeasible, among
other things, “improperly defer[red] mitigation of the project’s impacts to the site by
delaying formulation of several components of the data recovery plan until some future
time. [The second mitigation measure] simply provide[d] a generalized list of measures
to be undertaken by a qualified archaeologist and Native American monitor, but it d[id]
not set forth any performance standards or guidelines to ensure that th[o]se measures
w[ould] be effective. For instance, the program call[ed] for the future ‘preparation of a
technical report’ that ‘shall include a mitigation monitoring and reporting plan.’ Yet the
[mitigated negative declaration] d[id] not explain how the undefined monitoring and
reporting plan would mitigate the potentially significant effects on the site’s cultural
resources, nor d[id] it specify any criteria for evaluating the efficacy of that plan. There
[wa]s also no indication in the record that it was impractical or infeasible for the City to
articulate specific performance criteria for th[o]se data recovery measures at the time of
29
project approval.” (Save Agoura Cornell Knoll v. City of Agoura Hills, supra, 46
Cal.App.5th at p. 688.)
Petitioners assert that, “[a]s in Agoura, the County has offered two de facto
mitigation measures for the Project’s emergency evacuation impacts, namely the two
‘scenarios’ described in the [mitigated negative declaration], wherein one would be
necessary if the other was not feasible or effective.” (Fn. omitted.) In petitioners’ view,
“[l]ike in Agoura where the lead agency failed to analyze whether avoidance was
feasible, the [mitigated negative declaration] here does not include any analysis of
whether the alternative mitigation routes would be effective.”
Agoura is not analogous. The County explained that decisions regarding
evacuations are made by the Emergency Services Office. Master response to comments
number 3 states the County had consulted with the Emergency Services Office and
County Fire regarding the project and both agencies “were comfortable with the County’s
proposal to mitigate the closure of Newtown Road.” The County further explained it
would coordinate with the Emergency Services Office and County Fire prior to
construction to ensure adequate evacuation options are in place in the event of a fire or
other emergency, “any evacuation order or shelter in place order from [the Emergency
Services Office] will be executed in whatever manner [the Emergency Services Office]
deems appropriate for the emergency that necessitates the evacuation” and, in that regard,
the Emergency Services Office will use “best practices to notify the public and direct
them to evacuate.” In other words, the agency with the expertise and authority over
evacuations approved of the mitigation proposed and would continue to play a key role in
determining which mitigation measures to employ in a given emergency. The record also
shows that it was impractical and infeasible for the County to articulate which evacuation
option would be implemented in a specific emergency. As the County explained,
“[s]ince each emergency has its own unique set of circumstances, it is not possible to
predetermine the manner (or direction) any specific resident will evacuate or shelter in
30
place during a theoretical emergency” and “fires and other emergencies are unpredictable
and may require instantaneous changes to any plan for evacuation that is developed
before the emergency.” The County’s analysis is thus not akin to the city’s analysis in
Agoura.
We also disagree with petitioners’ assertion that the County failed to commit itself
to a course of action, failed to commit to any mitigation, and did not provide a timetable
or trigger for construction of the temporary emergency evacuation route. In addition to
the information noted in the foregoing paragraph, the mitigated negative declaration
provided that the contract plans will include the construction of the temporary evacuation
route and the County will consult with the Emergency Services Office, County Fire, and
the County Department of Transportation prior to construction of the project to determine
whether the temporary evacuation route should be constructed. In other words, the
decision whether to construct the temporary evacuation route will be a coordinated effort.
The mitigated negative declaration further provides that the decision whether to construct
the temporary emergency evacuation route will be made prior to the project’s
construction, and the criteria for that decision will include the timing of the construction
in relation to the fire season.
This is not a situation where mitigation is based on “loose or open-ended
performance criteria” such that the mitigated negative declaration affords the County a
means of avoiding mitigation during project implementation. (Center for Biological
Diversity v. Department of Fish & Wildlife, supra, 234 Cal.App.4th at p. 241.) “Deferral
of the specifics of mitigation is permissible where the local entity commits itself to
mitigation and lists the alternatives to be considered, analyzed and possibly incorporated
in the mitigation plan.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261,
1275.) The County need not commit to a particular mitigation measure, as long as it
commits to mitigating the impacts of the project. (California Native Plant Society v. City
of Rancho Cordova (2009) 172 Cal.App.4th 603, 621.) The details of exactly how
31
mitigation will be achieved under the identified measures can be deferred pending further
review by the agencies responsible for emergency evacuation based on the circumstances
presented when construction of the project starts, with the primary consideration for
constructing the temporary evacuation route being whether the bridge is closed during the
fire season. (See ibid.) The County thus did not impermissibly defer mitigation of the
project’s impacts.
III
We Do Not Consider Petitioners’ Argument That The County
Deferred Analysis Of Temporary Emergency Evacuation Impacts
Petitioners claim the County unlawfully failed to analyze and instead deferred the
analysis as to the following impacts: (1) whether the project requires a temporary
emergency evacuation route; (2) whether the project would expose people to a significant
risk of loss, injury or death involving wildland fires; and (3) whether the project would
result in inadequate emergency access. Petitioners further assert that, “[b]y deferring
analysis of these impacts, the County also deferred analysis of whether mitigation is
necessary,” relying on Lotus. (Citing Lotus v. Dept. of Transportation (2014) 223
Cal.App.4th 645.)5 Petitioners argue that, like in Lotus, the “[t]he strategy of
incorporating mitigation measures as part of a project to avoid analysis of the mitigated
impacts violates [the Act’s] public disclosure mandates.”
Respondents counter that petitioners’ “failure to identify substantial evidence in
the record establishing a fair argument of a significant impact to evacuation routes during
Project construction is dispositive of their deferral argument.” Respondents further assert
petitioners “are arguing for the first time on appeal that the County mischaracterized the
temporary culvert as part of the Project when it is in fact mitigation.”
5 Petitioners further contrast Lotus with Mission Bay Alliance v. Office of
Community Investment & Infrastructure (2016) 6 Cal.App.5th 160.)
32
We agree with respondents on both fronts. “Because the concept of deferral of
environmental review does not change the threshold imposed by the fair argument test,
there is no need for a separate inquiry. In other words, the idea of deferral is subsumed in
the fair argument test, which considers whether a potential environmental impact is
speculative or reasonably foreseeable; undertaking a separate inquiry would be
redundant.” (County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th
1544, 1600.)
Petitioners’ Lotus argument also presents a new theory not advanced in the trial
court. In the trial court, petitioners argued that “respondents abused their discretion in
failing to adequately address impacts in the [mitigated negative declaration] and in failing
to prepare a full [environmental impact report].” (Capitalization and bolding omitted.)
Petitioners’ theories in support of this argument were: (1) substantial evidence supports a
fair argument that the project may have significant emergency evacuation impacts; and
(2) respondents improperly deferred mitigation “of the impact of a fire during
construction.” The trial court addressed both of petitioners’ arguments in its written
ruling. Petitioners’ argument that respondents incorporated mitigation measures as part
of the project was not raised in the trial court. Petitioners’ assertion in their reply brief
that a heading in their opening trial brief preserved the issue for appeal is unavailing. A
heading is not argument based on cogent reasoning with citations to the record and legal
authority. Because petitioners assert this new theory for the first time on appeal, we
decline to consider it. (See Hussey-Head v. World Savings & Loan Assn. (2003) 111
Cal.App.4th 773, 783, fn. 7.) We further note petitioners have made no effort to
demonstrate they exhausted their administrative remedies in asserting the theory in the
administrative process either. (See Save Agoura Cornell Knoll v. City of Agoura Hills,
supra, 46 Cal.App.5th at pp. 676-677 [exhaustion of administrative remedies requires
that the exact issue must have been presented to the administrative agency].)
33
IV
We Do Not Consider Petitioners’ Argument That The County Deferred Analysis
Of Impacts Related To Construction Of The Temporary Evacuation Route
In approximately one page, petitioners assert the County violated the Act by
failing to analyze whether the mitigation measure itself, i.e., the construction of a
temporary evacuation route, would create new significant impacts because “[t]he County
has floated, but not committed to, the idea of building a temporary emergency evacuation
route for use when the Project is under construction.” Respondents assert petitioners are
barred from asserting this argument on appeal because they failed to raise it in the trial
court. Petitioners do not respond to respondents’ forfeiture argument in their reply.
Respondents are correct that petitioners did not raise this argument in the trial
court. As stated in the preceding section, we thus do not consider the argument on
appeal.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1)-(2).)
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
34