California Clean Energy Committee v. City of Woodland

Filed 2/28/14 Cal. Clean Energy Committee v. City of Woodland 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
CALIFORNIA CLEAN ENERGY COMMITTEE,
Plaintiff and Appellant, C072033
v. (Super. Ct. No. CVPT112146)
CITY OF WOODLAND,
Defendant and Appellant;
PETROVICH DEVELOPMENT COMPANY, LLC,
et al.,
Real Parties in Interest and Respondents.
The City of Woodland (City) approved Gateway II –- a project by Petrovich
Development Company, LLC (Petrovich) to develop a 234-acre regional shopping center
on undeveloped agricultural land located at the City’s periphery. California Clean
Energy Committee (CCEC), a California nonprofit organization, filed a petition for writ
of mandate under the California Environmental Quality Act (CEQA) (Pub. Resources
1
Code, §§ 21050 et seq.) to challenge the City’s certification of its final environmental
impact report (final EIR) and approval of the project.1 The City opposed the petition,
which was denied in its entirety by the trial court.
CCEC appeals, contending (1) the trial court erred in concluding Gateway II did
not conflict with the City’s general plan, (2) the City’s mitigation measures are
insufficient to ameliorate the urban decay that will be caused by Gateway II, (3) the City
did not give meaningful consideration to feasible project alternatives such as the mixed-
use alternative, and (4) the final EIR did not properly identify and analyze potentially
significant energy impacts generated by Gateway II.
The City asserts claims regarding conflicts between Gateway II and the general
plan are not cognizable because CCEC did not comply with the statute of limitations
imposed by the planning and zoning law (Gov. Code, § 65000 et seq.). The City
additionally asserts CCEC failed to present the CEQA issues in the trial court or during
the administrative process. The City further argues it properly considered each of the
other issues raised by CCEC but rejected them as it is allowed to do under CEQA. And,
the City asserts it committed to implementing mitigation measures sufficient to
ameliorate urban decay expected to result from Gateway II.
The City also cross-appeals, contending the trial court erroneously granted
CCEC’s motion to tax costs. Specifically, the City claims it should have received its
costs for helping prepare the administrative record. CCEC responds that a public agency
cannot recover costs when the CEQA petitioner has elected to prepare the record.
1 Undesignated statutory references are to the Public Resources Code. References
to guidelines are to those located in California Code of Regulations, title 14, section
15000 and following (Guidelines). These Guidelines are promulgated by the secretary of
the California Resources Agency to implement CEQA requirements. (§ 21083, subd. (e);
Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th
1156, 1161, fn. 1 (Center for Sierra Nevada Conservation).)
2
We conclude CCEC’s petition in the trial court did not assert a cause of action
arising under the planning and zoning law. Consequently, CCEC has not preserved the
issue of whether the rezoning of the land for Gateway II conflicts with the City’s
general plan.2
On the merits, we conclude the City’s mitigation measures for alleviating the
anticipated urban decay in its downtown and at a local shopping mall are inadequate
under CEQA. Although one of the five mitigation measures is likely to lessen the effects
of urban decay, even the City recognizes it alone does not constitute sufficient mitigation.
The remaining urban decay mitigation measures are too speculative, vague, or
noncommittal to comply with CEQA. As to the City’s consideration of project
alternatives, we conclude the EIRs did not properly assess the merits of the mixed-use
alternative. On the issue of energy impacts, we conclude CEQA required the City to
assess transportation, construction, and operation energy impacts resulting from Gateway
II. The City’s reliance on the California Building Standards Code (Cal. Code Regs., tit.
24, part 6) (Building Code) and California Green Building Standards Code (Cal. Code
Regs., tit. 24, part 11) (CALGreen) did not suffice to address issues of transportation,
construction, and operation energy impacts.
Our conclusion that the judgment must be reversed obviates our need to consider
the City’s issue on cross-appeal, which depends on the City being the prevailing party on
the CEQA claims.
2 However, the City’s additional assertions of forfeiture of the CEQA issues are
troubling because they are contradicted by the record. In a case in which the appellate
record consists of 18,010 pages, claims regarding failure to assert a point during the EIR
process should be more carefully presented.
3
BACKGROUND
The City’s General Plan
The City adopted its general plan in December 2002. In it, the City announced it
intended “[t]o revitalize the Downtown district as the heart of the city. [¶] With a stock
of historic buildings that tie the community to its past, Downtown is the center of
community activity and a primary source of Woodland’s identity. The General Plan
seeks to preserve Downtown’s central location and its function as a center for community
activities by continuing the City’s revitalization efforts and considering the effects of
other land use decisions on Downtown vitality.”
The Gateway II Project
The first phase of the development (Gateway I) was approved in 2006 and
involved Petrovich’s development of 49 acres of agricultural land for retail and
commercial uses on the edge of the City –- near the intersection of Interstate Highway 5
(I-5) and Yolo County Road 102. Gateway I was completed and began leasing when
Petrovich submitted a plan to the City for development of the next phase of the project
(Gateway II). In February 2007, Petrovich filed an application with the City to annex
approximately 154 acres of farmland to the City and to rezone the acreage from
“Agricultural” to “General Commercial.”
The Draft EIR
In October 2009, the City issued a notice of preparation that an EIR would be
prepared for the proposed Gateway II project. A draft EIR was published in April 2010.
The draft EIR described the scope of the project as a regional commercial center with
approximately 808,000 square feet of retail space, 3 hotels with 100 rooms each, a 20,000
square foot sit-down restaurant, 3 fast food restaurants with a cumulative 30,500 square
feet of space, an 80,000 square foot auto mall, and 100,000 square feet of office space.
The draft EIR studied Gateway II’s anticipated impact on retail in surrounding
areas. Based on “the super-regional retail center size of Woodland Gateway Phase I and
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Phase II,” the draft EIR expected the project would “include customers from Woodland,
Davis, Dixon, North Natomas, Greenbriar Specific Plan area, Colusa County, and
unincorporated portions of Yolo County (including UC Davis and Winters).” Because
“the specific tenant mix is unknown,” the draft EIR “evaluate[d] the retail trade area’s
ability to support the overall amount of retail rather than specific classes of retail goods.”
The analysis divided its assessment of impacts into “two time periods based on
projected market demand.” According to the draft EIR, “The phasing approach allows
for the Project to minimize the potential for urban decay. [¶] —- The first time period is
based on estimated market demand in 2015. This phase includes the first 295,000 square
feet of retail development and half of the auto mall (two dealerships). It is anticipated
this first phase will be completed by 2015. [¶] —- The second time period includes the
cumulative project absorption through 2025. The second phase of development,
anticipated to be completed no earlier than 2025, will include the remaining 545,000
square feet of retail development, 100,000 square feet of office, hotels, and remaining
auto dealership site.”
URBAN DECAY
The draft EIR engaged in “an assessment of the potential for the Project to cause
urban decay.” To this end, the draft EIR explained that “the project must be considered
in connection with the effects of other current projects, and the effects of probable future
projects. For example, impacts related to the physical deterioration and urban decay of
Downtown Woodland, East of Downtown, and East of I-5.” The draft EIR noted, “urban
decay impacts are cumulative by nature.”
The draft EIR concluded Gateway II could threaten the economic health and
physical integrity of the City’s downtown in the near term: “Downtown Woodland . . .
could be directly vulnerable to a loss of sales and increased vacancies. While Project
tenants will not compete directly with Downtown retailers, a lack of overall demand for
additional retail may make it financially infeasible for public or private investors to make
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the needed capital improvements to support additional retail suited for Downtown. The
development of [Gateway II] may hinder efforts to revitalize downtown in the short term.
[¶] Over the long-term however, it is anticipated that downtown could benefit from the
Project. As envisioned, the Project will accommodate auto dealers currently inhabiting
key redevelopment sites in downtown. In addition, the Project has the potential to
increase the number of shoppers to Woodland through increased capture of regional sales
activity, providing downtown with the opportunity to capture a portion of these additional
shoppers. Finally, the Project will generate additional General Fund revenues to support
enhanced municipal service and potential investment in downtown.”
MIXED-USE ALTERNATIVE
In addition to the proposed project, the draft EIR also considered a mixed-use
alternative, which “would include development of less acreage (approximately 60 percent
or 93 acres) than the proposed project. The Mixed Use Alternative would still include an
annexation of 154 acres from Yolo County to the City of Woodland. The 93 acres would
be prezoned General Commercial (C-2) with a Planned Development Overlay to allow
the mixed use nature of the alternative. The remaining acreage would be prezoned to a
new zoning designation of Urban Reserve consistent with the General Plan. The southern
and eastern portion of the property would remain in the existing condition, and would act
as a buffer between the project and the [Woodland Water Pollution Control Facility]
located to the east of the site, and agricultural uses to the south of the site. Development
of this alternative would include a five-acre site for a 100-unit multi-family development
at approximately 20 units per acre. In addition, the commercial portion of the
development would include a local-serving commercial town center (with approximately
50 residential units located above the center) to enhance a sense of community among
residents. The commercial portion of the development would include approximately
200,000 square feet (including restaurants) and two auto dealerships. Development under
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the Mixed-Use Alternative would be designed to be consistent with SmartGrowth
principles.”3
The draft EIR rejected the mixed-use alternative as infeasible. As to this
alternative, the draft EIR states that “[t]he Mixed Use Alternative would decrease the
development of roadways, driveway, and parking areas, as compared to the proposed
project. . . . Transportation and circulation impacts are directly related to land
development activities. The Mixed Use Alternative would reduce the commercial trips
generated by the proposed project; however, would result in increased trips associated
with the proposed residential uses. Therefore, it is assumed that the transportation and
circulation impacts of the Mixed Use Alternative would be similar to the proposed
project.” (Italics added.)
ENERGY ANALYSIS
The draft EIR addressed the energy impact of Gateway II by determining the
national “average annual usage of electricity is roughly 13 kWh/square foot and the
average annual usage of natural gas is roughly 37 cubic feet/square foot for commercial
buildings.” These national averages were multiplied by the number of square feet
expected for Gateway II at full buildout. Thus, the draft EIR stated Gateway II “would
be expected to produce a demand for 10,504,000 kWh of electricity annually and
29,896,000 cubic feet of natural gas annually.”
The draft EIR noted any new commercial construction would be subject to
“[Building Code] energy conservation requirements . . . for non-residential buildings.”
The draft EIR also noted that “a substation, multiple utility lines (60 kV, 115 kV, and 230
kV), and gas transmission lines exist in the area” to provide power to Gateway II. The
draft EIR also found the project would generate 40,051 new vehicle trips each day. Of
3 The draft EIR does not define “SmartGrowth principles.”
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these, approximately 40 percent would be regional in nature with “much longer trip
lengths than the standard for City of Woodland retail shopping trips.”
Ultimately, the draft EIR concluded Gateway II “would be expected to have a less-
than-significant impact regarding the wasteful, inefficient, or unnecessary consumption
of energy” and required no mitigation measures.
The Final EIR
The final EIR was published in June 2011. Regarding the issues raised in this
appeal, the final EIR essentially reiterated the findings and conclusions set forth in the
draft EIR for the Gateway II project.
URBAN DECAY
The final EIR reworded language of the mitigation measures for addressing the
impact on urban decay expected for the project. For example, the final EIR revised
Mitigation Measure 4.11-3(a), as follows: “The City shall consider co[o]rdinateing with
the current owner of the County Fair Mall to consider a strategic land use plan for the
County Fair Mall to analyze potential viable land uses for the site.” An explanatory note
following the revised text for the urban decay mitigation measures states, “The above
change is for clarification purposes only and does not alter the conclusions in the
Draft EIR.”
MIXED-USE ALTERNATIVE
The final EIR reiterated the conclusions about the economic infeasibility of the
mixed-use alternative as set forth in the draft EIR. Specifically, the final EIR again
concluded the mixed-use alternative would fail to “better capture leakage of sales from
uses not already served within the community” or to “develop revenue generating land
uses to provide jobs.”
ENERGY ANALYSIS
On the issue of “[i]ncreased demand for energy and impacts concerning wasteful,
inefficient, or unnecessary consumption of energy by commercial uses,” the final EIR
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concluded no mitigation measures were required because the project would have less than
significant impacts. The final EIR elaborates: “Increased demand for energy and
impacts concerning wasteful, inefficient, or unnecessary consumption of energy by
commercial uses is discussed in impact statement 4.10-7, page 4.10-29 of the Draft EIR,
Chapter 4.10, Public Services and Utilities. The Draft EIR determined that project would
be required to comply with or exceed Title 24 guidelines and regulations. Therefore, the
project would be expected to have a less-than-significant impact regarding the wasteful,
inefficient, or unnecessary consumption of energy.”
City Approval of Gateway II
In September 2011, the Woodland City Council voted three-to-two to: certify the
final EIR, approve Petrovich’s application for annexation, pre-zone the project site to
61.3 acres designated general commercial, and amend the general plan. In approving the
project, the City reduced Gateway II to 61.3 acres and no more than 340,000 square feet
of commercial space.
URBAN DECAY
As part of its project approval, the City adopted Resolution 6029 (Resolution).
The Resolution acknowledges Gateway II will have a deleterious effect on the City’s
downtown. Specifically, the Resolution states that “[i]mplementation of the proposed
project would result in physical deterioration and urban decay of retail centers in
Downtown Woodland, East of Downtown, and East of I-5.” (Italics added.) Supporting
this finding, the City found that “[t]he proposed project could attract new consumers to
the City of Woodland and minimize impacts to existing big box retailers. However,
should existing big box retailers relocate to the proposed project, re-leasing of the vacant
big box could be difficult, and urban decay could occur in the entire shopping center. In
addition, excess of retail space (supply) would slow the revitalization of Downtown
Woodland. As stated above, development of partial buildout of the proposed project
would result in short-term excess retail space (supply) and long-term retail leakage.”
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Despite the findings regarding downtown urban decay, the City approved the
project and noted “that (l) changes or alterations have been required in, or incorporated
into, the project which avoid or substantially lessen the significant environmental effects
identified above and (2) specific economic legal, social, technological, or other
considerations make infeasible certain mitigation measures or alternatives identified in
the Final EIR.” To ameliorate the effects of urban decay, the Resolution stated the urban
decay mitigation measures set forth in the draft and final EIRs would be required.
MIXED-USE ALTERNATIVE
In contrast to the rationale of economic infeasibility set forth in the EIRs, the
Woodland City Council rejected the mixed-use alternative on grounds it “would have
greater environmental impacts than the proposed project. (State CEQA Guidelines
§ 15126.6(c).)” (Italics added.) As further explanation, the Resolution stated: “The
Mixed-Use Alternative would result in greater public services and utilities impacts, as
compared to the proposed project. Impacts to land use and agricultural resources,
biological resources, and hydrology and water quality would be fewer, as compared to
the proposed project. All other impacts would be equal to those of the proposed project.
Because the Mixed-Use Alternative would, overall, result in greater impacts than the
proposed project, the Alternative is considered infeasible.”
ENERGY CONSERVATION
The Resolution did not mention the energy considerations set forth in the draft and
final EIRs under section 4.10-7, which required compliance with building codes to
achieve energy efficiency. Thus, no mitigation measures were adopted to address
transportation, construction, or operation energy impacts for Gateway II.
CCEC’s Petition for Writ of Mandate in Superior Court
In September 2011, CCEC filed a petition for writ of mandate in superior court to
challenge the City’s certification of the final EIR and its approval of the project. In July
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2012, the trial court denied the petition in its entirety. CCEC timely filed a notice of
appeal from the judgment.
In September 2012, the trial court awarded costs to the City, with the exception of
the City’s request for $6,896.40 related to City staff and consultant time spent in helping
to prepare the administrative record.4 The City has timely filed a notice of appeal from
the post-judgment order awarding costs to the City.
CEQA OVERVIEW
The basic principles of CEQA are by now familiar and well settled. “ ‘[T]he
purpose of CEQA is to protect and maintain California’s environmental quality. With
certain exceptions, CEQA requires public agencies to prepare an EIR for any project they
intend to carry out or approve whenever it can be fairly argued on the basis of substantial
evidence that the project may have a significant environmental effect. . . .’ (Communities
for a Better Environment v. California Resources Agency [(2002) 103 Cal.App.4th 98],
106-107, fns. omitted.) The California Supreme Court has ‘repeatedly recognized that
the EIR is the “heart of CEQA.” [Citations.] “Its purpose is to inform the public and its
responsible officials of the environmental consequences of their decisions before they are
made. Thus, the EIR ‘protects not only the environment but also informed self-
government.’ ” ’ ” (Center for Sierra Nevada Conservation, supra, 202 Cal.App.4th at p.
1169, quoting Laurel Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112, 1123; fn. omitted.)
To comply with CEQA, “[p]ublic agencies must ‘prepare, or cause to be prepared
by contract, and certify the completion of, an [EIR] on any project that they intend to
4 The trial court did not calculate the total costs it awarded to the City. Instead, it
noted amounts it was deducting from the request for costs. Even on cross-appeal, the
City does not assert what it was actually awarded by the trial court. Given our conclusion
that reversal of the judgment on CCEC’s appeal obviates the need to consider the issue
on cross-appeal, we do not need to calculate the actual amount of costs awarded.
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carry out or approve which may have a significant effect on the environment.’ (§ 21151,
subd. (a).) Section 21065 defines ‘project’ to include ‘an activity which may cause either
a direct physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment, and which is any of the following: [¶] (a) An activity directly
undertaken by any public agency. [¶] . . . [¶] (c) An activity that involves the issuance to
a person of a lease, permit, license, certificate, or other entitlement for use by one or more
public agencies.’ The Guidelines further define project as ‘the whole of an action, which
has a potential for resulting in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment, and that is any of the
following: [¶] . . . [¶] (3) An activity involving the issuance to a person of a lease,
permit, license, certificate, or other entitlement for use by one or more public agencies.’
(Guidelines, § 15378, subd. (a)(3).) Under CEQA, ‘ “ ‘Project’ is given a broad
interpretation . . . to maximize protection of the environment.” ’ ” (Center for Sierra
Nevada Conservation, supra, at pp. 1169–1170, quoting Riverwatch v. Olivenhain
Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.)
“In reviewing an agency’s compliance with CEQA in the course of its legislative
or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’ (. . . § 21168.5.) Such an abuse is established ‘if the
agency has not proceeded in a manner required by law or if the determination or decision
is not supported by substantial evidence.’ [Citations.]” (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427
(Vineyard), fns. omitted.) “Judicial review of these two types of error differs
significantly: while we determine de novo whether the agency has employed the correct
procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’
[citation], we accord greater deference to the agency’s substantive factual conclusions. In
reviewing for substantial evidence, the reviewing court ‘may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been equally or
12
more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence
and determine who has the better argument.’ [Citation.]” (Id. at p. 435.) “A public
agency’s decision to certify the EIR is presumed correct, and the challenger has the
burden of proving the EIR is legally inadequate.” (Santa Monica Baykeeper v. City of
Malibu (2011) 193 Cal.App.4th 1538, 1545–1546, citing Sierra Club v. City of Orange
(2008) 163 Cal.App.4th 523, 530; Save Our Peninsula Committee v. Monterey County
Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 (Save Our Peninsula).)
In a CEQA case, we review the lead agency’s action rather than the trial court’s
subsequent decision. Accordingly, we “resolve the substantive CEQA issues on [appeal]
by independently determining whether the administrative record demonstrates any legal
error by the [lead agency] and whether it contains substantial evidence to support the
[agency’s] factual determinations.” (Vineyard, supra, 40 Cal.4th at p. 427.) Consistent
with these principles of review, we proceed to consider CCEC’s contentions.
APPEAL BY CCEC
I
Whether the Project Conflicts with the City’s General Plan Goals of Preserving an
Economically Viable Downtown
CCEC contends the City violated the requirements set forth in its general plan by
approving Gateway II after finding it would cause urban decay in the City’s downtown.
The City responds that the issue has not been preserved for review to the extent it arises
under the planning and zoning law. Insofar as the claim arises under CEQA, the City
argues part of the claim was not presented during the EIR process, and it fully complied
with CEQA requirements. We conclude the issue of urban decay is cognizable only to
the extent it arises under CEQA.
The City approved the annexation of the Gateway II acreage and its zoning change
on September 20, 2011. The City asserts that “[t]he statute of limitations under the State
Planning and Zoning Law therefore expired on December 19, 2011.” With this assertion,
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we have no quarrel because Government Code section 65009, subdivision (c), provides
that for a challenge to a land-use zoning change “no action or proceeding shall be
maintained in any of the following cases by any person unless the action or proceeding is
commenced and service is made on the legislative body within 90 days after the
legislative body’s decision: [¶] (A) To attack, review, set aside, void, or annul the
decision of a legislative body to adopt or amend a general or specific plan.”
However, CCEC filed its petition for writ of mandate in superior court within the
90-day window –- specifically, within two days after the City’s zoning action. On this
point, the City argues CCEC did not actually present the planning and zoning law cause
of action in its petition. The City acknowledges CCEC presented CEQA causes of action
and “the Petition alleges the Gateway II project was inconsistent with the City’s General
Plan.” Nonetheless, the City asserts the zoning claim was not properly presented because
the petition did not present the issue as “a separate cause of action” or “alert the City to
the allegation that the State Planning and Zoning law had been violated.”
CCEC’s petition does contain the factual allegation that “a project such as this one
with significant and unmitigated decay impacts that would positively degrade the
downtown is not consistent with the General Plan.” However, CCEC’s petition is titled,
“Petition for writ of mandate pursuant to the Environmental Quality Act.” Each of the
three causes of action expressly states a CEQA violation by the City for (1) erroneously
certifying a deficient EIR, (2) making findings in support of the project without sufficient
evidence, and (3) failing to recirculate the final EIR to correct its deficiencies. For these
CEQA violations, CCEC requested relief in the form of setting aside the final EIR,
injunctions preventing construction on the project, and a declaration that the City must
comply with CEQA’s EIR requirements before proceeding, and costs of suit.
CCEC’s petition is thoroughly steeped in CEQA and does not mention the
planning and zoning law. Moreover, the petition requests no relief in the form of
rezoning or nullifying the City’s action to amend the general plan to annex the acreage
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for Gateway II. We agree with the City that the petition failed to alert it that CCEC
challenged its actions under the planning and zoning law.
“Generally speaking, ‘[t]he complaint in a civil action serves a variety of purposes
[citation], of which two are relevant here: it serves to frame and limit the issues [citation]
and to apprise the defendant of the basis upon which the plaintiff is seeking recovery
[citations]. In fulfilling this function, the complaint should set forth the ultimate facts
constituting the cause of action, not the evidence by which plaintiff proposes to prove
those facts.’ (Committee On Children's Television, Inc. v. General Foods Corp. (1983)
35 Cal.3d 197, 211–212.) [¶] By framing and limiting the issues, the complaint limits
the bases upon which a plaintiff may seek to impose liability on a defendant.” (Centex
Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102.) Even though this case
involves a petition rather than a complaint, the City is likewise entitled to be alerted to
the basis upon which petitioner CCEC seeks the relief for which it prays. CCEC did not
plead any planning and zoning law violation in a manner that might have fairly apprised
the City of this legal theory for relief.
Accordingly, we conclude the claim is not cognizable insofar as it arises under the
planning and zoning law. Given the CEQA claim has been preserved but the planning
and zoning law issue forfeited, the scope of our review is limited to whether the City’s
study and mitigation of urban decay complied with CEQA.
II
Whether the City’s Urban Decay Mitigation Measures Comply with CEQA
In addition to challenging Gateway II on grounds it conflicts with the City’s
general plan, CCEC argues Mitigation Measures 4.11-2(a) through (d) and 4.11-3(a) do
not satisfy CEQA requirements. We conclude the City’s urban decay mitigation
measures are inadequate under CEQA.
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A.
CEQA Encompasses Urban Decay Considerations
Under CEQA, a lead agency must address the issue of urban decay in an EIR
when a fair argument can be made that the proposed project will adversely affect the
physical environment. “An EIR is to disclose and analyze the direct and the reasonably
foreseeable indirect environmental impacts of a proposed project if they are significant.
(Guidelines, §§ 15126.2, 15064, subd. (d)(3).)[5] Economic and social impacts of
proposed projects, therefore, are outside CEQA’s purview. When there is evidence,
however, that economic and social effects caused by a project, such as a shopping center,
could result in a reasonably foreseeable indirect environmental impact, such as urban
decay or deterioration, then the CEQA lead agency is obligated to assess this indirect
environmental impact.” (Anderson First Coalition v. City of Anderson (2005) 130
Cal.App.4th 1173, 1182 (Anderson First).)
When a project will result in an adverse change to the physical environment,
CEQA instructs that “the agency ‘shall provide that measures to mitigate or avoid
significant effects on the environment are fully enforceable through permit conditions,
agreements, or other measures’ (§ 21081.6, subd. (b)) and must adopt a monitoring
program to ensure that the mitigation measures are implemented (§ 21081.6, subd. (a)).
The purpose of these requirements is to ensure that feasible mitigation measures will
actually be implemented as a condition of development, and not merely adopted and then
5 Guidelines section 15126.2, subdivision (a), provides in pertinent part: “Direct
and indirect significant effects of the project on the environment shall be clearly
identified and described, giving due consideration to both the short-term and long-
term effects.”
Guidelines section 15064, subdivision (d), requires that both primary and
“reasonably foreseeable” secondary consequences be considered in determining the
significance of a project’s environmental effect.
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neglected or disregarded. (See § 21002.1, subd. (b).)” (Federation of Hillside &
Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-1261,
fn. omitted.)
B.
The City’s Urban Decay Mitigation Measures
The issue of urban decay in the City’s downtown and existing retail areas was
studied in the draft EIR and its conclusions were reiterated in the final EIR. In the draft
EIR, the City recognized that if “existing big box retailers relocate to the proposed
project, re-leasing of the vacant big box could be difficult, and urban decay could occur
in the entire shopping center. In addition, excess of retail space (supply) would slow the
revitalization of Downtown Woodland. . . . [D]evelopment of partial buildout of the
proposed project would result in short-term excess retail space (supply) and long-term
retail leakage.” To ameliorate the urban decay expected to be caused by Gateway II, the
city council imposed the following five mitigation measures to combat urban blight
downtown and at the County Fair Mall:
Mitigation Measure 4.11-2(a): At the time of future applications for site-specific
development, the project applicant shall submit a request to the Community Development
Department for a Master Conditional Use Permit (CUP), which must include a site plan
and architectural review, as well as create design standards for alternative transportation,
pedestrian and bicycling access, site plans, and architecture review. The Master CUP
shall comply with the draft EIR for the project, and will be evaluated at the time of the
request to determine if further environmental review is necessary [for the] list of specific
project uses for review and approval by the Community Development Department. The
Master CUP shall indicate that the list of specific project uses shall primarily consist of
regional retail uses that do not include entertainment uses and other uses that would
compete with retail in Downtown Woodland.
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Mitigation Measure 4.11-2(b): At the time of future applications for site-specific
development, the project applicant shall submit a market study for and urban decay
analysis, including hotels if proposed, for review and approval by the Community
Development Department. The market study and urban decay analysis shall show that
adequate retail demand exists for the proposed uses and that urban decay would not occur
as a result of the proposed phase of the project. If the market study and urban decay
analysis show inadequate demand, then the City shall evaluate the impacts of the use
proposed for development and either require additional mitigation or require an
alternate use.
Mitigation Measure 4.11-2(c): Prior to the issuance of building permits, the
project applicant shall contribute funds toward the development of a Retail Strategic
Plan. The amount of the fee shall be determined in the Development Agreement between
the City and the project applicant. The City would be responsible for preparing a Retail
Strategic Plan which shall determine what retail areas shall be preserved as retail and
which areas shall be developed as other uses, helping to identify repositioning strategies
for those underperforming centers.
Mitigation Measure 4.11-2(d): Prior to the issuance of building permits, the
project applicant shall contribute funds toward the preparation of an Implementation
Strategy for the Downtown Specific Plan. The amount of the fee shall be determined in
the Development Agreement between the City and the project applicant. The City would
be responsible for preparing the Implementation Strategy which, among other things, can
help define the strategies for progressing the civic and entertainment focus of downtown.
To address urban blight at the County Fair Mall, Mitigation Measure 4.11-3(a)
requires the City to “coordinate with the current owner of the County Fair Mall to prepare
a strategic land use plan for the County Fair Mall to analyze potential viable land uses for
the site.” However, even with “[i]mplementation of Mitigation Measures 4.11-3(a) and
4.11-3(b) [to] reduce the intensity and delay urban decay to retail in County Center Mall,
18
West Woodland, and East Street Corridor,” the City still anticipated that “this impact
would remain significant and unavoidable.”
C.
Preservation of the Issue for Review
Before turning to the individual mitigation measures adopted to combat urban
decay, we address the City’s contention that CCEC failed to preserve the issue by raising
it in the trial court. The City’s contention misreads the record.
Ordinarily, we do not consider issues raised for the first time on appeal. (Hale v.
Morgan (1978) 22 Cal.3d 388, 394.) In arguing CCEC failed to raise the issue of urban
decay in the trial court, the City cites the portion of CCEC’s petition that alleges claims
under CEQA. However, that same petition devoted nearly three pages to setting forth
allegations regarding this issue under the rubric, “Urban Decay.” Those pages clearly
articulated the alleged inadequacies of the City’s EIRs regarding urban decay and
described how the mitigation measures fail to combat the problem. In short, the very
document cited by the City dispels its claim of forfeiture.
In addition to arguing CCEC failed to raise the issue in the trial court, the City
asserts CCEC did not challenge Mitigation Measure 4.11-2(a) during the EIR process.
“In order to attack a decision that is subject to CEQA, the alleged grounds for
noncompliance must have been presented to the public agency, and the person attacking
the decision must have raised some objection during the administrative proceedings. (§
21177, subds. (a), (b).)” (Santa Teresa Citizen Action Group v. City of San Jose (2003)
114 Cal.App.4th 689, 701.) Although an issue must first have been raised during the
administrative process to be preserved for judicial review, it may be argued in court by a
different person. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th
865, 875.) Mitigation Measure 4.11-2(a) limits Gateway II to consisting “primarily” of
regional retail usage that does not include civic, entertainment, or other uses that would
compete with the downtown.
19
The City asserts CCEC failed to present the issue during the EIR process. We
reject the assertion. Having reviewed the administrative record, we conclude specific
objections to Mitigation Measure 4.11-2(a) were raised during the EIR process. For
example, one City resident commented on the final EIR by objecting to “the inadequate
and improper manner of mitigation analysis for serious impacts of urban decay caused by
the revised project” and stated that an “inadequate aspect of this mitigation analysis
related to urban decay involves an absence of any relevant specificity of the statement
that commercial zoning within the revised project: ‘will primarily consist of regional
retail uses that do not include . . . uses that would compete with Downtown Woodland.’ ”
Additionally, the final EIR itself notes CCEC comment: “The mitigation proposed for
urban decay is vague and unenforceable.” Accordingly, CCEC may challenge Mitigation
Measure 4.11-2(a) because the issue has been preserved for our review.
D.
Land Use Controls –- Mitigation Measure 4.11-2(a)
In approving the project, the City adopted Mitigation Measure 4.11-2(a) to require
Petrovich to submit “a site plan and architectural review, as well as create design
standards for alternative transportation, pedestrian and bicycling access, site plans, and
architecture review” when the developer is ready to build on specific sites within the
project area. The developer’s application –- along with the supporting documents –- are
subject to “review and approval by the Community Development Department.” If the
City issues a permit for the application, the permit “shall indicate that the list of specific
project uses shall primarily consist of regional retail uses that do not include
entertainment uses and other uses that would compete with retail in Downtown
Woodland.”
CCEC argues this mitigation measure is meaningless because even if “project uses
shall primarily consist of regional retail uses,” up to 49 percent of Gateway II may
consist of uses directly competing with the City’s downtown retail area. To the extent
20
CCEC’s argument relies on the conflict between land use for Gateway II and the City’s
2002 general plan, it is forfeited for failure to timely present a claim under the planning
and zoning law. (See part I, ante.) To the extent the argument arises under CEQA, we
reject it on the merits.
Under CEQA, a project may be adopted even when it will have a significant and
unavoidable adverse effect on the environment. (California Oak Foundation v. Regents
of University of California (2010) 188 Cal.App.4th 227, 260.) A lead agency may find
the “unmitigated effects [to be] outweighed by the project’s benefits.” (Ibid.; Guidelines,
§ 15093.) And, each individual mitigation measure need not, by itself, be able to cure all
significant impacts resulting from the project. (See, e.g., California Oak Foundation v.
Regents of University of California, supra, 188 Cal.App.4th at p. 279 [adoption of
“several mitigation measures and continuing best practices” were cumulatively sufficient
to protect archaeological resources at the project sites].)
Mitigation Measure 4.11-2(a) serves to ensure that the primary retail uses for
Gateway II will be regional, i.e., the type of retail that will not directly compete with the
City’s smaller downtown stores. This measure does not run afoul of CEQA because it
does not outright ban all retail uses that compete with the City’s downtown. There is no
need to require mutually exclusive retail offerings in the City’s downtown and at
Gateway II. Indeed, such mutual exclusivity might not be possible since overlapping
product offerings might not be avoidable. As to this mitigation measure, we accept the
City’s representation that it “merely found that this measure would help, albeit not
enough to avoid the significant urban decay impact identified by the EIR.” While
Mitigation Measure 4.11-2(a) is permissible under CEQA, it does not, by itself, constitute
adequate mitigation of anticipated urban decay as a result of Gateway II.
21
E.
Future Market Studies –- Mitigation Measure 4.11-2(b)
Mitigation Measure 4.11-2(b) requires Petrovich “[a]t the time of future
applications for site-specific development,” to “submit a market study for and urban
decay analysis, including hotels if proposed, for review and approval by the Community
Development Department.” CCEC argues this measure conflicts with CEQA in four
ways: (1) by “piecemealing” urban decay analysis, (2) by ceding responsibility for
studying an environmental impact to the developer, (3) by delegating review and
approval authority to the City’s community development department, and (4) by failing
to require specific mitigation actions to alleviate urban decay. We agree with the second
and fourth contentions.
First, Mitigation Measure 4.11-2(b) does not impermissibly piecemeal the analysis
of urban decay for Gateway II. It is well settled “ ‘that CEQA forbids “piecemeal”
review of the significant environmental impacts of a project.’ (Berkeley [Keep Jets over
the Bay Committee v. Board of Port Commissioners (2001)] 91 Cal.App.4th [1344,]
1358.) Rather, CEQA mandates ‘that environmental considerations do not become
submerged by chopping a large project into many little ones —- each with a minimal
potential impact on the environment —- which cumulatively may have disastrous
consequences.’ (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283–
284.) Thus, the Guidelines define ‘project’ broadly as ‘the whole of an action, which has
a potential for resulting in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment. . . .’ (Guidelines, §
15378, subd. (a).) The question of which acts constitute the ‘whole of an action’ for
purposes of CEQA is one of law, which we review de novo based on the undisputed facts
in the record. (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora
(2007) 155 Cal.App.4th 1214, 1224 (Tuolumne County).)” (Communities for a Better
Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 98.)
22
The draft EIR in this case analyzed the urban decay to be expected for the whole
of the project. The City studied the impacts of developing all 154 acres with a maximum
of 808,000 square feet of retail space, three hotels, an auto mall, restaurants, and 100,000
square feet of office space. Thus, the City’s EIR had the hallmarks of a program EIR
intended to address the cumulative impacts of multiple actions –- such as for a multi-
stage project. (Vineyard, supra, 40 Cal.4th at p. 429.) Mitigation Measure 4.11-2(b)’s
tiering of further review for applications to build at specific sites within Gateway II does
not run afoul of CEQA. “Tiering is proper ‘when it helps a public agency to focus upon
the issues ripe for decision at each level of environmental review and in order to exclude
duplicative analysis of environmental effects examined in previous environmental impact
reports.’ (. . . § 21093, subd. (a); see also [Guidelines] § 15385, subd. (b).)” (In re Bay-
Delta (2008) 43 Cal.4th 1143, 1170.) Mitigation Measure 4.11-2(b) does not constitute
improper piecemealing because the City did not use tiering to downplay or segregate the
cumulative impact of urban decay arising from Gateway II.
Second, CCEC objects to Mitigation Measure 4.11-2(b) on grounds the market
studies are to be completed by the developer. The point is well taken. Under CEQA, a
public agency cannot charge a developer with the responsibility to study the impact of a
proposed project. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296(Sundstrom).) Sundstrom involved a county delegating the duty to conduct hydrology
impact studies for construction of a sewage treatment plant to the applicant. (Id. at p.
307.) The Sundstrom court held CEQA did not allow delegation of “the County’s legal
responsibility to assess environmental impact by directing the applicant himself to
conduct the hydrological studies subject to the approval of the Planning Commission
staff. Under CEQA, the EIR or negative declaration must be prepared ‘directly by, or
under contract to’ the lead agency. (. . . § 21082.1.) The implementing regulations
explicitly provide: ‘The draft EIR which is sent out for public review must reflect the
independent judgment of the lead agency.’ ([Guidelines] § 15084, subd. (e).)”
23
(Sundstrom, supra, at p. 307.) Here, Mitigation Measure 4.11-2(b) shifted the
responsibility to Petrovich to produce the market studies in violation of CEQA. (Ibid.)
Third, the Woodland City Council did not err by delegating responsibility to
implement this mitigation measure to its community development department. In Kleist
v. City of Glendale (1976) 56 Cal.App.3d 770, the Court of Appeal held a city council
cannot delegate responsibility for considering an EIR to its planning board. (Id. at
p. 779.) Under CEQA, “the EIR must be presented to the decision making body of the
agency.” (Sundstrom, supra, 202 Cal.App.3d at p. 307.)
Here, the city council did act as the decision-making authority when it reviewed
and approved the final EIR. The city council made the required findings under CEQA
that Gateway II would result in significant and unavoidable urban decay impacts. In an
effort to reduce those impacts, the city council adopted Mitigation Measure 4.11-2(b).
Shifting the responsibility to carry out the mitigation in that measure is allowed under
CEQA. Section 21081.6, subdivision (a)(1), provides that when changes or alterations
have been required or incorporated into the project to mitigate or avoid the significant
effects on the environment, the lead agency “shall adopt a reporting or monitoring
program for the changes made to the project or conditions of project approval, adopted in
order to mitigate or avoid significant effects on the environment. The reporting or
monitoring program shall be designed to ensure compliance during project
implementation.” Delegation of responsibility for a monitoring program is recognized by
this section in its requirement that the monitoring “agency shall, if so requested by the
lead agency or a responsible agency, prepare and submit a proposed reporting or
monitoring program.” (Ibid.) CEQA does not require that the Woodland City Council
itself implement urban decay mitigation measures.
Fourth, the market study measure does not commit the City to any specific
mitigation action or impose any standards for determining whether it must undertake any
future measures. The Resolution adopting the project provides only that “[i]f the market
24
study and urban decay analysis show inadequate demand, then the City shall evaluate the
impacts of the use proposed for development and either require additional mitigation or
require an alternate use.” Thus, the Resolution approving the project does not identify
any specific mitigation measures nor does it provide any standards for the community
development department to adhere to in deciding whether the developer-proposed
mitigation is sufficient. “This is inadequate. No criteria or alternatives to be considered
are set out. Rather, this mitigation measure does no more than require a report be
prepared and followed, or allow approval by a county department without setting any
standards.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131
Cal.App.4th 777, 794.)
Here, the questions of whether mitigation measures will be required, of what they
might consist, and how effective they will be are left unanswered. Given the City’s
recognition that Gateway II will cause urban decay, it was required to do more than agree
to a future study of the problem. “An EIR is inadequate if ‘[t]he success or failure of
mitigation efforts . . . may largely depend upon management plans that have not yet been
formulated, and have not been subject to analysis and review within the EIR.’ (San
Joaquin Raptor [Rescue Center v. County of Merced (2007)] 149 Cal.App.4th [645,]
670.) ‘A study conducted after approval of a project will inevitably have a diminished
influence on decisionmaking. Even if the study is subject to administrative approval, it is
analogous to the sort of post hoc rationalization of agency actions that has been
repeatedly condemned in decisions construing CEQA.’ ” (Communities for a Better
Environment v. City of Richmond, supra, 184 Cal.App.4th at p. 92, quoting Sundstrom,
supra, 202 Cal.App.3d at p. 307.)
The City argues the market study mitigation requirement has a specific
performance standard in that each market study will have to show there is “adequate
retail demand for the proposed tenants at the site.” (Italics added.) A showing of
sufficient demand for the goods sold by a particular planned tenant for Gateway II does
25
not address the issue of whether urban decay in downtown has been sufficiently
alleviated. Moreover, the City’s solution to “either require additional mitigation or
require an alternate use” lacks any standard to ensure sufficient abatement of
urban decay.
Lacking any “criteria for success” in abating urban decay, the measure does not
ensure any actual mitigation. (See Communities for a Better Environment v. City of
Richmond, supra, 184 Cal.App.4th at p. 93.) CEQA’s requirements are not met by
Mitigation Measure 4.11-2(b).
F.
Urban Decay Study and Implementation Program –- Mitigation Measures 4.11-2(c)
& (d)
CCEC contends Mitigation Measures 4.11-2(c) and (d) failed to commit the City
to any feasible or enforceable mitigation measures to ameliorate the adverse effects of the
project on urban decay elsewhere in Woodland. The contention has merit.
The City adopted Mitigation Measure 4.11-2(c) to require that Petrovich
“contribute funds toward the development of a Retail Strategic Plan. The amount of the
fee shall be determined in the Development Agreement between the City and the project
applicant.” Mitigation Measure 4.11-2(d) requires Petrovich to “contribute funds toward
preparation of an Implementation Strategy for the Downtown Specific Plan.” As with the
retail strategic plan, “[t]he amount of the fee shall be determined in the Development
Agreement between the City and the project applicant.”
A draft of the development agreement in the administrative record provides that
Petrovich “shall pay its fair share towards (a) a citywide retail strategic plan/suburban
urban design and re-use analysis (a ‘Retail Strategic Plan’) for existing suburban retail
strip centers; and (b) an implementation strategy for the Downtown Specific Plan (an
‘Implementation Strategy’). The Retail Strategic Plan shall evaluate possible re-uses,
26
interventions, strategies, and process evaluations. The Implementation Strategy shall,
among other things, help define the strategies for progressing the civic and entertainment
focus of downtown. For purposes of this Paragraph . . . [Petrovich’s] ‘fair share’ for both
the Retail Strategic Plan and the Implementation Strategy shall be 50% of the actual cost
of such studies, provided that [Petrovich’s] collective share for both shall not exceed
$45,000 in the aggregate.”
The call for a retail strategic plan and implementation strategy for a downtown
specific plan (fair share plans) appears in the draft EIR without further discussion or
analysis. The final EIR adopted these mitigation measures without elaboration.
Consequently, the entirety of what can be gleaned from the record about the retail
strategic plan is that it is intended to “determine what retail areas shall be preserved as
retail and which areas shall be developed as other uses, helping to identify repositioning
strategies for those underperforming centers.” Likewise, the only information about the
implementation strategy is that “among other things,” it “can help define the strategies for
progressing the civic and entertainment focus of downtown.”
These fair share fees correspond to studies that do not obligate the City to
undertake any actual mitigation of urban decay. By their own terms, Mitigation
Measures 4.11-2(c) and (d) require the City only to “prepare” the fair share plans. These
mitigation measures do not require the City to undertake any action. “A commitment to
pay fees without any evidence that mitigation will actually occur is inadequate.” (Save
Our Peninsula, supra, 87 Cal.App.4th at p. 140.) Mitigation Measures 4.11-2(c) and (d)
stand in contrast to the “CEQA require[ment] that feasible mitigation measures actually
be implemented as a condition of development, and not merely be adopted and then
neglected or disregarded.” (Anderson First, supra, 130 Cal.App.4th at pp. 1186-1187.)
In Anderson First, this court considered a fair share mitigation fee program that
required the proposed project to pay 16.87 percent of the estimated cost of an interstate
highway interchange. (130 Cal.App.4th at p. 1188.) After noting fee-based mitigation
27
programs may constitute adequate measures under CEQA, Anderson First cautioned that
“[t]o be adequate, these mitigation fees, in line with the principle discussed above, must
be part of a reasonable plan of actual mitigation that the relevant agency commits itself to
implementing.” (Ibid., italics added.) The mitigation measure in that case did not pass
muster under CEQA because it was “vague regarding ‘the program to provide [those]
improvements’; in staff reports, City states it [was] preparing an update to the traffic
impact fee program to include the I–5 interchange improvements, and note[d] that
‘Condition 16 requires payment of the impact fee.’ ” (Id. at pp. 1188-1189.) Instead, the
City of Anderson was required to “make these fees part of a reasonable, enforceable plan
or program that is sufficiently tied to the actual mitigation of the traffic impacts at issue.”
(Id. at p. 1189.)
The fees in this case are more speculative than those presented in Anderson First,
where the costs of the transportation improvements had been calculated and were in “no
serious dispute.” (Anderson First, supra, 130 Cal.App.4th at p. 1188.) Here, the
administrative record does not estimate the cost to prepare the fair share plans. More
importantly, the City does not estimate how much the mitigation measures or strategies
called for in these plans will cost or how they might be implemented. Consequently,
these are the sort of speculative mitigation measures that do not comply with CEQA. (Id.
at pp. 1188-1189.)
The City counters the fair share plans constitute an adequate mitigation measure to
address urban decay. In so arguing, the City relies on this court’s decision in Sacramento
Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 (SOCA). SOCA involved a
challenge to an EIR prepared for the expansion of a convention center and construction of
an office tower. (Id. at p. 1016.) The EIR noted adverse impacts on traffic and parking,
for which specific mitigation measures were proposed. (Id. at pp. 1020-1022.) In
approving the project, the City “committed itself to mitigating the impacts of parking and
traffic” and “approved funds for a major study of downtown transportation.” (Id. at
28
p. 1029.) Moreover, the EIR in SOCA listed specific mitigation measures and standards
for parking utilization that were intended to alleviate adverse effects. (Ibid.)
In contrast to the concrete, measurable actions adopted in SOCA, supra, 229
Cal.App.3d 1011, the record in this case contains no evidence the fair share plans exist in
the City, such plans would be practicable, or the City has committed to creating such
plans. Thus, this case more closely resembles the facts presented in Center for Sierra
Nevada Conservation, supra, 202 Cal.App.4th 1156. In that case, the County of El
Dorado began allowing developers to clear oak woodlands to a greater extent than
previously allowed in exchange for payments to the Option B fee program. (Id. at
p. 1161.) The Option B program, however, remained sufficiently indeterminate to allow
it to qualify as an adequate mitigation measure under CEQA. As we explained, “neither
the general plan nor the program EIR included the necessary details for implementing
Option B, including specifying the fee rate, the parcels for which the fee would be
required prior to development, or the uses for which the fee would be employed by the
County.” (Id. at p. 1176.)
Mitigation fee programs may constitute adequate mitigation to address the adverse
effects of a project. However, “ ‘to be considered adequate, a fee program at some point
must be reviewed under CEQA, either as a tiered review eliminating the need to replicate
the review for individual projects, or on a project-level, as-applied basis. . . . Because the
fees set by the ordinance have never passed a CEQA evaluation, payment of the fee does
not presumptively establish full mitigation for a discretionary project.’ ” (Center for
Sierra Nevada Conservation, supra, 202 Cal.App.4th at pp. 1179-80, quoting California
Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1030.) Here,
the City’s EIRs did not adequately assess the scope of the program or fees necessary to
adequately address the urban decay impacts expected to result from construction of
Gateway II.
29
G.
Urban Decay at the County Fair Mall –- Mitigation Measure 4.11-3(a)
CCEC contends Mitigation Measure 4.11-3(a) purports to alleviate expected urban
decay at Woodland’s County Fair Mall but does not require the City to undertake any
actual mitigation. The point is well taken.
In approving Gateway II, the City acknowledged the project “would result in
physical deterioration and urban decay of retail centers in County Fair Mall, West
Woodland, and East Street Corridor.” (Italics added.) Mitigation Measure 4.11-3(a)
addresses urban decay at the County Fair Mall by providing: “The City shall coordinate
with the current owner of the County Fair Mall to prepare a strategic land use plan for the
County Fair Mall to analyze potential viable land uses for the site.” The City also
reiterated that Mitigation Measures 4.11-2(a) through (d) would be implemented.
Mitigation Measure 4.11-3(a) requires the City to take no action other than to
coordinate with the current owner to prepare a plan for viable land uses at the County
Fair Mall. Mitigation Measure 4.11-3(a) does not require actual study of this aspect of
urban decay. Moreover, this mitigation measure does not require any action by the City
to mitigate the urban decay it may discover to result for the County Fair Mall. Under
CEQA, this purported mitigation measure is inadequate. (Anderson First, supra, 130
Cal.App.4th at pp. 1188-1189.)
At oral argument, the City argued the programmatic nature of the EIR in this case
allows for future studies and additional mitigation to fulfill CEQA mandates. As this
court has previously explained, “Under Guidelines section 15168, program EIRs are used
for a series of related actions that can be characterized as one large project. If a program
EIR is sufficiently comprehensive, the lead agency may dispense with further
environmental review for later activities within the program that are adequately covered
in the program EIR. (Guidelines, § 15168, subd. (c).)” (Center for Sierra Nevada
Conservation, supra, 202 Cal.App.4th at p. 1171.) Here, the programmatic nature of the
30
City’s EIR does not remedy the urban decay mitigation measures’ shortcomings.
Although programmatic, the final EIR purported to study the project as a whole and to
implement sufficient mitigation measures to ameliorate the effects of urban decay. No
further mitigation measures or EIR studies for the issue of urban decay are promised
by the City.
Regardless of whether the City intends to conduct further tiered EIRs for parts of
the project, the program EIR is defective because it adopts inadequate mitigation
measures for urban decay. “While proper tiering of environmental review allows an
agency to defer analysis of certain details of later phases of long-term linked or complex
projects until those phases are up for approval, CEQA’s demand for meaningful
information ‘is not satisfied by simply stating information will be provided in the future.’
(Santa Clarita [Organization for Planning the Environment v. County of Los Angeles
(2003)] 106 Cal.App.4th [715,] 723.) As the CEQA Guidelines explain: ‘Tiering does
not excuse the lead agency from adequately analyzing reasonably foreseeable significant
environmental effects of the project and does not justify deferring such analysis to a later
tier EIR or negative declaration.’ ([Guidelines] § 15152, subd. (b).) Tiering is properly
used to defer analysis of environmental impacts and mitigation measures to later phases
when the impacts or mitigation measures are not determined by the first-tier approval
decision but are specific to the later phases. For example, to evaluate or formulate
mitigation for ‘site specific effects such as aesthetics or parking’ (id., § 15152
[Discussion]) may be impractical when an entire large project is first approved; under
some circumstances analysis of such impacts might be deferred to a later tier EIR.”
(Vineyard, supra, 40 Cal.4th at p. 431.) Having studied and attempted to mitigate the
urban decay effects from the project as a whole, the City may not excuse inadequate
mitigation by putting off corrective action to a future date.
31
H.
Conclusion
We conclude the City’s mitigation measures aimed at alleviating the urban decay
expected to result from Gateway II do not comply with CEQA. Except for Mitigation
Measure 4.11-2(a), we conclude the adopted mitigation measures are insufficient to
ensure the City will take concrete, measurable actions to counteract the urban decay
expected to result in downtown and at the County Fair Mall. As to Mitigation Measure
4.11-2(a), even the City acknowledges it is only a partial solution to the urban decay
impacts identified in the draft and final EIRs. Accordingly, the City has failed to adopt
adequate mitigation measures to address urban decay impacts as required under CEQA.
III
The Mixed-use Alternative
CCEC contends the City failed to give meaningful consideration to project
alternatives such as the mixed-use alternative. CCEC further argues no substantial
evidence supports the final EIR’s conclusion the mixed-use alternative was infeasible.
The City counters that the issue has been largely forfeited and lacks merit in any event.
We conclude the issue is cognizable and CCEC’s arguments have merit.
A.
Preservation of the Issue for Review
The City asserts CCEC forfeited claims that the draft and final EIRs did not
properly study traffic or air quality impacts of the mixed-use alternative. While the City
acknowledges CCEC challenged the lack of consideration given to the mixed-use
alternative, it asserts there were no comments made that specifically addressed traffic
impacts, air quality impacts, or the economic feasibility of the mixed-use alternative. We
reject the City’s assertion of forfeiture. A cursory review of the draft and final EIRs
shows these issues were repeatedly raised.
32
As to traffic impacts associated with the mixed-use alternative, the final EIR
expressly acknowledges a comment letter that urged consideration of project alternatives
on grounds that “[r]ecent studies show that appropriate design of transportation systems
can reduce vehicle miles traveled (VMT) from new commercial development up to 66%
by including mitigation such as transportation demand management, bike and pedestrian
friendly facilities, parking supply management, density, transit proximity, and mixed
use.” Another commenter complained that “[t]he traffic impacts of the project are
difficult to overstate.” This commenter noted the increased number of trips expected;
mitigation measures such as light-rail, other modes of public transportation, bicycle and
pedestrian-friendly measures, and parking incentives. Citations to traffic studies were
offered to help formulate effective mitigation measures. Contrary to the City’s assertion,
the issue of traffic impacts associated with the project and project alternatives was
discussed during the comment phase of the EIR process.
So too, air quality impacts –- including concerns about greenhouse gas emissions
–- were the subject of numerous comments during the EIR process. Concerns about
degradation of air quality as a result of the project were raised during the EIR process. In
particular, the Yolo County Board of Supervisors commented that the City was required
“to identify, quantify, and mitigate for climate change and greenhouse gas (GHG)
emissions,” but issued a draft EIR that “does not discuss any of these issues.” The board
of supervisors further asserted: “The [draft EIR] concludes that the proposed 1.1 million
square foot retail and auto mall is consistent with all recommended measures intended to
reduce greenhouse gas emissions. However, a close examination of Tables 4.3-15 and
4.3-16 [in the draft EIR] indicates that most of the ‘consistency’ claims are based on
mitigation measures that require future studies or plans that will be prepared and applied
to the project either ‘prior to issuance of grading permits’ or ‘at the time of submittal of
the detailed development plans for Planning Commission review.’ [¶] As one example,
both tables cite Mitigation Measure 4.3-2, which requires the applicant to submit a GHG
33
reduction strategy that ‘shall describe in text and on the site plan’ how nine very broad
standards will be implemented. The standards include such guidance as ‘reuse and
recycle construction and demolition waste’ and ‘create water-efficient landscapes.’
However, no details on how compliance will be achieved and/or no specific approval
procedures for future phasing are required to ensure that the measures will achieve GHG
reduction.” Nonetheless, the final EIR concluded that “[t]he City has imposed all
feasible mitigation to reduce air quality impacts of the project.” Regardless of the
correctness of the final EIR’s conclusion, it is clear the issue of air quality impacts was
raised as part of the EIR process.
As to the economic viability of the mixed-use alternative, CCEC argued during the
EIR process: “The City should reject as inadequate the basis provided in the EIR for
rejecting the Mixed-Use Alternative and the Reduced Intensity Alternative. It is clear
that both of these as well as alternative commercial sites along the rail corridor provide
feasible alternatives that would reduce impacts while meeting project objectives. [¶] The
attempted justification for the adverse environmental impacts is not adequate. The EIR
states that the project is intended to prevent ‘leakage of sales,’ but this term is never
defined or explained. In particular there is no explanation of why it is necessary to build
a commercial center that serves four counties in order to prevent ‘leakage of sales’ from
the City of Woodland.” CCEC’s critique of the “leakage of sales” rationale used by the
City to dismiss the mixed-use alternative was included in its briefing in the trial court.
Accordingly, the issue of whether economic infeasibility served as a basis for rejecting
the mixed-use alternative has been preserved for our review.
B.
CEQA Requires the Lead Agency to Consider Feasible Alternatives
The California Supreme Court has explained, “CEQA’s substantive mandate that
public agencies refrain from approving projects for which there are feasible alternatives
or mitigation measures is effectuated in section 21081. (See City of Poway [v. City of
34
San Diego (1984) 155 Cal.App.3d [1037,] 1045–1046.) Under this provision, a
decisionmaking agency is prohibited from approving a project for which significant
environmental effects have been identified unless it makes specific findings about
alternatives and mitigation measures. (§ 21081; see also Environmental Council v. Board
of Supervisors (1982) 135 Cal.App.3d 428, 439.) The requirement ensures there is
evidence of the public agency’s actual consideration of alternatives and mitigation
measures, and reveals to citizens the analytical process by which the public agency
arrived at its decision. (Citizens for Quality Growth v. City of Mt. Shasta (1988) 198
Cal.App.3d 433, 440–441; City of Poway, supra, 155 Cal.App.3d at p. 1046; Resource
Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896.)
Under CEQA, the public agency bears the burden of affirmatively demonstrating that,
notwithstanding a project’s impact on the environment, the agency’s approval of the
proposed project followed meaningful consideration of alternatives and mitigation
measures. (City of Poway, supra, 155 Cal.App.3d at p. 1046.)” (Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134.)
C.
The City’s Rejection of the Mixed-use Alternative
The City’s draft EIR stated it limited its discussion to feasible alternatives.
Infeasible alternatives were described in the draft EIR as “[t]hose alternatives that would
have impacts identical to or more severe than the proposed project, and/or that would not
meet any or most of the project objectives.” The draft EIR analyzed two alternative
designs for Gateway II: a reduced-intensity alternative and a mixed-use alternative.
The reduced-intensity alternative would be limited to 295,000 square feet of retail
(including restaurants) and two auto dealerships –- all encompassing no more than
93 acres.
The mixed-use alternative would also be limited to a total of 93 acres. It would
consist of 200,000 square feet of commercial development (including restaurants), two
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auto dealerships, and a “five acre site for a 100-unit multi-family development at
approximately 20 units per acre.” This alternative would also include “a local-serving
commercial town center (with approximately 50 residential units located above the
center) to enhance a sense of community among residents.”
The draft EIR rejected the reduced-intensity alternative and mixed-use alternative
on the grounds of economic infeasibility. It concluded, “these alternatives would not
meet the following project objectives related to economic feasibility: [¶] 1) Facilitate the
development of a regional retail center to better capture leakage of sales from uses not
already served within the community; and [¶] [(2)] Develop revenue generating land
uses to provide jobs and capture regional retail leakage.”
As to the environmental impacts of the mixed-use alternative, the draft EIR
assumed similarity with Gateway II as proposed. The draft EIR explains: “The Mixed
Use Alternative would decrease the development of roadways, driveway, and parking
areas, as compared to the proposed project. . . . Transportation and circulation impacts
are directly related to land development activities. The Mixed Use Alternative would
reduce the commercial trips generated by the proposed project; however, would result in
increased trips associated with the proposed residential uses. Therefore, it is assumed
that the transportation and circulation impacts of the Mixed Use Alternative would be
similar to the proposed project.” (Italics added.)
The draft EIR contains no evidence the mixed-use alternative would have similar
or greater environmental impacts than the project as proposed by Petrovich. In the final
EIR, the City asserted that “[t]he draft EIR included analysis of a Mixed-Use Alternative
which would result in fewer impacts related to physical deterioration and urban decay.”
In approving Gateway II, the City did not reject the mixed-use alternative on
grounds of economic infeasibility as set forth in the draft EIR. Instead, the City declared:
“For the reasons set forth below in the Supporting Explanation, the City Council rejects
the Mixed Use Alternative because (1) it is infeasible and ([2]) because the Mixed-Use
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Alternative would have greater environmental impacts than the proposed project. (State
CEQA Guidelines § 15126.6(c).) . . . [¶] Supporting Explanation: The Mixed-Use
Alternative would result in greater public services and utilities impacts, as compared to
the proposed project. Impacts to land use and agricultural resources, biological
resources, and hydrology and water quality would be fewer, as compared to the proposed
project. All other impacts would be equal to those of the proposed project. Because the
Mixed-Use Alternative would, overall, result in greater impacts than the proposed
project, the Alternative is considered infeasible. (Draft EIR, pp. 6-11 to 6-15.)” The
City’s conclusion about environmental impacts was also in the final EIR, which noted
this alternative would have “fewer impacts related to physical deterioration and
urban decay.”
Gateway II, as approved, significantly scaled back the scope of the project to 61.3
acres of “General Commercial” development. However, the City did not explain how the
mixed-use alternative could be deemed economically infeasible with only 93 acres of
development (comprising 200,000 square feet of future commercial development in
addition to five acres of residential housing units) when the approved project consists of
only 61.3 acres (comprising “up to 340,000 square feet of future commercial
development”).
D.
Feasibility of the Mixed-use Alternative
Although the draft and final EIRs rejected the mixed-use alternative on grounds of
economic infeasibility, the City approved the project on grounds the mixed-use
alternative was environmentally inferior. The City did not acknowledge it switched from
the rationale of “economic infeasibility” due to “leakage of sales” to one of “greater
environmental impacts” as the ground for rejecting the mixed-use alternative. The
administrative record does not indicate the City discovered additional information
showing the mixed-use alternative to be an inferior environmental alternative.
37
The City attempts to explain its shift by asserting that “[t]he determination in the
EIR that the Mixed-Use Alternative failed to meet project objectives was the opinion of
the City’s EIR consultants.” (Italics changed.) The City continues that “[a]s such, the
feasibility conclusions in the EIR were not binding on the City Council, and the Council
had discretion to reach conclusions that differed from those in the EIR.” We disagree.
The City adopted a rationale unsupported by its EIR analysis. The City’s
unexplained switch from a rationale of economic infeasibility to environmental inferiority
as the basis for rejecting the mixed-use alternative conflicts with CEQA’s requirement to
“disclose ‘the “analytic route the . . . agency traveled from evidence to action” ’ . . . .”
(Vineyard, supra, 40 Cal.4th at p. 445, quoting Laurel Heights Improvement Ass’n v.
Regents of University of California (1988) 47 Cal.3d 376, 404 (Laurel Heights I).) Here,
the City’s administrative process sheds no light on how it came to reject the mixed-use
alternative based on environmental inferiority instead of economic infeasibility in the
draft and final EIRs. Consequently, the City has failed to comply with CEQA in
rejecting the mixed-use alternative on grounds of environmental inferiority to the project
as approved.
IV
Whether the Final EIR Failed to Properly Identify and Analyze Potentially Significant
Energy Impacts Resulting from Gateway II
CCEC argues the City’s EIRs did not properly analyze or mitigate the potentially
significant energy impacts generated by Gateway II. We agree.
A.
Issue Preservation
The City asserts CCEC forfeited its contentions regarding energy impacts because
CCEC did not cite Appendix F during the EIR process. Appendix F of the CEQA
Guidelines requires that projects assess the energy impacts of a project when a fair
38
argument can be made that the project will have significant environmental impact. (See
part IV C., post [examining Appendix F].) We disagree.
CCEC was not required to cite specific sections of the CEQA Guidelines to
preserve the issue of energy impacts for review. “This is because ‘ “[i]n administrative
proceedings, [parties] generally are not represented by counsel. To hold such parties to
knowledge of the technical rules of evidence and to the penalty of waiver for failure to
make a timely and specific objection would be unfair to them.” (Note (1964) Hastings
L.J. 369, 371.) It is no hardship, however, to require a layman to make known what facts
are contested.’ (Kirby v. Alcoholic Bev. etc. Appeals Bd. (1970) 8 Cal.App.3d 1009,
1020.)” (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo
(1985) 172 Cal.App.3d 151, 163, italics added.)
CCEC presented its concerns about the potential energy impacts of Gateway II to
the City during the EIR process. Under the rubric “Energy Impacts,” CCEC commented:
“The EIR should contain a cumulative evaluation of the energy impacts that would be
involved in the construction and operation of the center. For example, project
implementation would involve building pads, roads, and appurtenant improvements.
This construction requires energy including diesel fuel. Additional energy is required for
the construction of structures. [¶] The energy impacts of future project operation should
be evaluated. The operation of commercial buildings requires electricity and natural gas
for space heating, cooling, ventilation, lighting, water heating, equipment operation,
maintenance, etc. The cumulative impacts on energy supplies and energy-efficient
design alternatives should be evaluated.”
Also during the EIR process, CCEC addressed its concerns about transportation
energy impacts. CCEC commented: “Direct and indirect energy impacts should be
evaluated including energy that would be consumed in the construction and operation of
the required transportation infrastructure and in the manufacture, operation, and
maintenance of on-road vehicles.”
39
Consequently, the City’s assertion that the issue of transportation energy was not
addressed during the administrative process lacks merit. CCEC included its energy
impact concerns in its briefing on the issue in the trial court. Thus, CCEC has preserved
the issue of energy impacts for review.
B.
The City’s Energy Impacts Analysis
The entirety of the City’s energy impacts analysis for Gateway II comprises less
than a page in the draft EIR.6 In pertinent part, the draft EIR states: “Based upon reports
6 Upon reviewing the record, it appears the EIRs and the Resolution required a
number of measures that would likely have the collateral effect of substantial energy-
saving effects. However, these directives are adopted under the rubric of reducing
“overall project-generated emissions of ozone-precursor pollutants by approximately
15 percent.” (Italics added.) Given that these measures address ozone-precursor
pollutants rather than energy impacts, it is understandable that the City does not rely on
Mitigation Measure 4.3-2 in defending the adequacy of the proposed energy saving
mitigation measures.
Mitigation Measure 4.3-2 appears to require Petrovich to “[d]esign buildings to be
energy efficient. Site buildings to take advantage of shade, prevailing winds, landscaping
and sun screens to reduce energy use. [¶] Install efficient lighting and lighting control
systems. Daylight should be used as an integral part of lighting systems in buildings,
sufficient to provide lighting for 75 percent of interior work spaces of proposed buildings.
[¶] Install light colored ‘cool’ roofs and pavements (i.e., high reflectance, high emittance
roof surfaces, or exceptionally high reflectance and low emittance surfaces) and
strategically placed shade trees. [¶] Install energy efficient heating and cooling systems,
appliances and equipment, and control systems. [¶] Install light emitting diodes (LEDs)
for traffic, street, and other outdoor lighting. [¶] Limit the hours of operation of outdoor
lighting. [¶] Provide the necessary facilities and infrastructure to encourage the use of
low or zero-emission vehicles (e.g., electric vehicle charging facilities and conveniently
located alternative fueling stations) and public transit into project design. [¶] Include
internal pedestrian and bicycle routes that connect to adjacent pedestrian and bicycle
routes; as well as, transit stops located either onsite or along adjacent roadways. Create
travel routes that ensure that destinations may be reached conveniently by public
transportation, bicycling or walking. [¶] Promote ridesharing programs (e.g., by
designating a certain percentage of parking spaces for ride sharing, designating adequate·
passenger loading and unloading and waiting areas for ride sharing vehicles). [¶] Plant
40
and data provided by the California Energy Commission and the Energy Information
Administration of the USDOE, the average annual usage of electricity is roughly 13
kWh/square foot and the average annual usage of natural gas is roughly 37 cubic
feet/square foot for commercial buildings. Based upon these figures the proposed project
would be expected to produce a demand for 10,504,000 kWh of electricity annually and
29,896,000 cubic feet of natural gas annually.
“The [Building Code] energy conservation requirements for non-residential
buildings would be applied. . . . [¶] Pursuant to the [Building Code] and the Energy
Efficiency Standards, the City of Woodland would review the design components of the
energy efficiency and conservation measures as specific plans are submitted. In addition,
a substation, multiple utility lines (60 kV, 115 kV, and 230 kV), and gas transmission
lines exist in the area to serve the buildout of the proposed project.
“The proposed project would be subject to the above-identified reviews to ensure
that the project complies with (or exceeds) Title 24 guidelines and regulations.
Therefore, although the project would result in an increased demand for energy, the
proposed project would be expected to have a less-than-significant impact regarding the
wasteful, inefficient, or unnecessary consumption of energy.
and maintain trees to help shade hardscape parking and pedestrian surfaces. [¶]
Incorporate onsite transit facility improvements (e.g., pedestrian shelters, route
information, benches, lighting) to coincide with existing or planned transit service. [¶]
Provide on-site bicycle storage and showers for employees that bike to work. [¶] Air
conditioning with Non-HCFC refrigerants should be installed in new buildings. [¶]
Building equipment should be Energy-Star rated to the extent applicable. [¶] Design on-
site structures to exceed California Title 24 energy conservation requirements.”
Although there is likely to be a high correlation between reducing greenhouse
emissions and energy savings, this court cannot assume the overlap is sufficient under
CEQA’s study and mitigation requirements. As CCEC correctly observes, “Air quality
mitigation is not a substitute for an energy analysis.” Thus, we will not consider
Mitigation Measure 4.3-2 in our discussion of mitigation measures addressing energy
impacts.
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“Mitigation Measure(s) [¶] None required.”
The City’s final EIR adopted the draft EIR’s analysis without substantive change.
C.
Appendix F to the CEQA Guidelines
Under CEQA, an EIR is “fatally defective” when it fails “to include a detailed
statement setting forth the mitigation measures proposed to reduce wasteful, inefficient,
and unnecessary consumption of energy.” (People v. County of Kern (1976) 62
Cal.App.3d 761, 774.) The requirement to adopt energy impact mitigation measures “is
substantive and not procedural in nature and was enacted for the purpose of requiring the
lead agencies to focus upon the energy problem in the preparation of the final EIR.” (Id.
at p. 774.) However, “lead agencies have not consistently included such analysis in their
EIRs.” (Cal. Natural Resources Agency, Final Statement of Reason for Regulatory
Action: Amendments to the State CEQA Guidelines Addressing Analysis and Mitigation
of Greenhouse Gas Emissions Pursuant to SB97 (Dec. 2009), p. 71.) For this reason, the
California Natural Resources Agency amended Appendix F to the CEQA Guidelines in
2009 “to ensure that lead agencies comply with the substantive directive in section
21100(b)(3).”7 (People v. County of Kern, supra, at p. 774.)
Appendix F of the Guidelines declares that “[t]he goal of conserving energy
implies the wise and efficient use of energy.” (Guidelines, app. F, § (I).) To this end,
Appendix F notes that “[t]he means of achieving this goal include: [¶] (1) decreasing
overall per capita energy consumption, [¶] (2) decreasing reliance on fossil fuels such as
coal, natural gas and oil, and [¶] (3) increasing reliance on renewable energy sources.”
7 Section 21100, subdivision (b), provides than an EIR “shall include a detailed
statement setting forth all of the following: [¶] . . . [¶] (3) Mitigation measures proposed
to minimize significant effects on the environment, including, but not limited to,
measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.”
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(Ibid.) Thus, Appendix F provides that “[p]otentially significant energy implications of a
project shall be considered in an EIR to the extent relevant and applicable to the project.”
(Id. at § II.) Among the factors to be considered, if applicable to the project, are
“[p]otential measures to reduce wasteful, inefficient and unnecessary consumption of
energy during construction, operation, maintenance and/or removal” including
“[a]lternate fuels (particularly renewable ones) or energy systems.” (Id. at § (D)(4).)
D.
The City’s Energy Impacts Analysis
1. Transportation Energy Impacts
Appendix F states that environmental impacts subject to the EIR process include
“[t]he project’s projected transportation energy use requirements and its overall use of
efficient transportation alternatives.” (Guidelines, app. F, subd. (II)(C)(6).) Here, the
City’s draft EIR anticipated Gateway II would generate up to 40,051 new vehicle trips
each day. Of these, 40 percent of the trips were expected to originate outside the city.
Nonetheless, the City concluded the energy impacts from the project would be less than
significant. In so concluding, the City’s energy impacts analysis did not address the
transportation energy impacts of the project.
On appeal, the City does not deny its EIRs did not assess transportation energy
impacts. Instead, the City argues its reduction of the size of the project as approved
necessarily means some of the transportation energy impact was mitigated. The City also
asserts it has mitigation measures designed to reduce vehicle trips. Of course, the City
cannot say how much less transportation energy is needed for the project as approved
because the issue has never been assessed in an EIR. CEQA EIR requirements are not
satisfied by saying an environmental impact is something less than some previously
unknown amount. (Vineyard, supra, 40 Cal.4th at p. 445; Laurel Heights I, supra, 47
Cal.3d at p. 404)
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We conclude the City’s EIR analysis is deficient insofar as it does not assess or
consider mitigation for transportation energy impacts of the project.
2. Construction and Operational Energy Impacts
Appendix F states that when relevant to a project, an EIR should consider:
“Energy consuming equipment and processes which will be used during construction,
operation and/or removal of the project. If appropriate, this discussion should consider
the energy intensiveness of materials and equipment required for the project.”
(Guidelines, app. F, subd. (II)(A)(1), italics added.) Further, Appendix F notes an EIR
should consider whether the project involves “Unavoidable Adverse Effect” such as
“wasteful, inefficient and unnecessary consumption of energy during the project
construction, operation, maintenance and/or removal that cannot be feasibly mitigated.”
(Id. at subd. (II)(F).)
In approving Gateway II, the City found that requiring Petrovich to comply with
the Building Code sufficed to address energy impact concerns for the project. “California
building standards are contained in title 24 of the California Code of Regulations.
(International Assn. of Plumbing etc. Officials v. California Building Stds. Com. (1997)
55 Cal.App.4th 245, 248.) Included in those standards are the California Building
Energy Efficiency Standards. (Cal. Code Regs., tit. 24, part 6.)” (Tracy First v. City of
Tracy (2009) 177 Cal.App.4th 912, 932 (Tracy First).) Although the Building Code
applies to all nonresidential buildings, it does not extend beyond the buildings
themselves. It addresses the building’s envelope, exterior lighting, and signage.
(Building Code, § 100, subd. (b) & Table 100-A, [“Application of Standards”].) Thus,
the Building Code sets forth minimum efficiency requirements for air-conditioning,
heating, windows, roofs, and insulation. (Building Code, §§ 112, 116, 118, 123.)
Although the Building Code addresses energy savings for components of a new
commercial construction, it does not address many of the considerations required under
Appendix F of the CEQA Guidelines. These considerations include whether a building
44
should be constructed at all, how large it should be, where it should be located, whether it
should incorporate renewable energy resources, or anything else external to the building’s
envelope. Here, a requirement that Gateway II comply with the Building Code does not,
by itself, constitute an adequate assessment of mitigation measures that can be taken to
address the energy impacts during construction and operation of the project.
The City asserts that, in addition to the Building Code, the “[p]roject must also
comply with [CALGreen], which contains further requirements for energy conservation
in new construction.” CALGreen took effect on January 1, 2011. (Cal. Building
Standards Com. (2010) Cal. Green Building Standards Code: CALGreen, p. i.) As it
applies to nonresidential new construction, CALGreen is intended to provide guidance on
“planning, design and development methods that include environmentally responsible site
selection, building design, building siting and development to protect, restore and
enhance the environmental quality of the site and respect the integrity of adjacent
properties.” (CALGreen, § 5.101.) As the draft EIR noted, CALGreen sets forth such
requirements as a 20 percent reduction in indoor water use, separate water meters for
nonresidential buildings, diversion of construction waste from landfills, energy systems
inspections for buildings larger than 10,000 square feet, and low-pollutant interior finish
materials.
Like the Building Code, CALGreen does not address construction and operational
energy impacts for a project intended to transform agricultural land into a regional
commercial shopping center. (See CALGreen, §§ 5.201.1-5.508.) Moreover, CALGreen
does not address transportation energy impacts for a project such as Gateway II. (See
ibid.)
We also reject the City’s reliance on Tracy First, supra, 177 Cal.App.4th 912.
That case involved a challenge under CEQA to the City of Tracy’s approval to build a
95,900-square-foot supermarket. (Tracy First at p. 916.) The City of Tracy’s EIR
included 17 pages discussing energy issues and 8 pages discussing energy impacts. The
45
EIR concluded no mitigation measures were required because there was no significant
energy impact. (Id. at pp. 930-931.) On appeal, Tracy First made “an argument with
respect to the EIR’s reliance on the California Building Energy Efficiency Standards that
[was] difficult to comprehend.” (Id. at p. 933.) The Tracy First court concluded, as to
the “argument that it is improper to rely on state building standards in determining
whether an energy impact is significant, we disagree. CEQA requires ‘[m]itigation
measures proposed to minimize significant effects on the environment, including, but not
limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of
energy.’ (. . . § 21100, subd. (b)(3).) The California Building Energy Efficiency
Standards are meant to promote energy efficiency, as the name implies. In other words,
they ‘reduce the wasteful, inefficient, and unnecessary consumption of energy.’
[Citation.] Other than arguing that reliance on the building standards is not enough,
Tracy First makes no argument concerning what more the EIR should have done.”
(Tracy First, supra, 177 Cal.App.4th at pp. 933-934, italics added.) Ultimately, with
respect to energy impacts, the Tracy First court held Tracy First had failed to show that
the City of Tracy prejudicially abused its discretion based on lack of substantial evidence.
(Id. at p. 936.)
Here, unlike Tracy First, the City did not properly assess the construction and
operational energy impacts of Gateway II. Tellingly, the City concedes the draft EIR
“did not consider the potential energy impacts associated with the additional square
footage of [uses other than the 808,000 square feet of retail space] assumed at buildout.”
Thus, the City acknowledges it did not study the construction or operational energy
impacts of three hotels, a 20,000 square foot restaurant, three fast food restaurants, an
auto mall, and 100,000 square feet of office space. Although the City characterized the
omission as nonprejudicial, the failure to study the energy impacts resulting from a large
part of the planned construction is not inconsequential. “ ‘ The error is prejudicial “if the
failure to include relevant information precludes informed decisionmaking and informed
46
public participation, thereby thwarting the statutory goals of the EIR process.” ’ (San
Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at
pp. 721–722.)” (Save Our Peninsula, supra, 87 Cal.App.4th at p. 118.) Thus, we reject
City’s assertion it would have approved the project regardless of what a proper energy
impacts analysis would have been. We conclude the City’s EIRs were inadequate
because they lacked a discussion or analysis of the energy impacts of the project.
3. Renewable Energy Impacts
The introduction to Appendix F states that its goals include “increasing reliance on
renewable energy sources.” (Guidelines, app. F, subd. (I)(3).) Appendix F further states
that “Mitigation Measures may include: [¶] . . . [¶] 4. Alternate fuels (particularly
renewable ones) or energy systems.” (Id. at subd. (II)(D)(4).) Nonetheless, the City’s
EIRs for Gateway II do not indicate any investigation into renewable energy options that
might be available or appropriate for the project.
The City responds that it “was not required to incorporate any renewable energy
features suggested by [CCEC] in order to reduce renewable energy features.” This
assertion misses the point of CCEC’s claim under CEQA: the City’s EIRs omit any
discussion or analysis of renewable energy options for Gateway II. CEQA is violated
when an EIR contains no discussion of a potentially significant environmental
consideration. (California Oak Foundation v. City of Santa Clarita (2005) 133
Cal.App.4th 1219, 1236)
Here, the City’s EIRs failed to comply with the requirements of Appendix F to the
Guidelines by not discussing or analyzing renewable energy options.
APPEAL BY THE CITY OF WOODLAND
V
Taxing Costs
On cross-appeal, the City argues it should have been awarded costs associated
with helping to prepare the administrative record. The trial court denied the City’s
47
request for record preparation costs finding the circumstances did not warrant “an award
of costs to [the City] in order ‘to preserve the statutory purposes of cost containment and
expediting CEQA litigation.’ ” Under CEQA, “the prevailing party in a CEQA action
may recover ‘reasonable costs or fees imposed for the preparation’ of the record, even if
the non-prevailing party elected to prepare the record pursuant to section 21167.6,
subdivision (b)(2).” (St. Vincent’s School for Boys, Catholic Charities CYO v. City of
San Rafael (2008) 161 Cal.App.4th 989, 1019, italics added.) Our conclusion that the
City erred in several respects under CEQA necessitates remand and renders any
determination of costs to the prevailing party premature.
DISPOSITION
The judgment is reversed, and the matter remanded to the trial court to grant
California Clean Energy Committee’s petition for writ of mandate on grounds (1) the
City of Woodland’s urban decay mitigation measures are insufficient under the California
Environmental Quality Act, (2) the final environmental impact report violates the
California Environmental Quality Act by not properly assessing the feasibility of the
mixed-use alternative, and the City of Woodland’s rationale for rejecting the mixed-use
alternative is not supported by substantial evidence in its environmental impact reports,
and (3) the City of Woodland did not properly assess transportation, construction, and
operational energy impacts in its environmental impact reports.
The trial court shall vacate the award of costs to the City of Woodland as the
prevailing party and shall retain jurisdiction over this action by way of a return to the writ
of mandate demonstrating the City of Woodland has rescinded its final environmental
impact report certification and project approval, after which the City of Woodland shall
exercise its independent judgment as to how to proceed. (Pub. Resources Code,
§ 21168.9, subd. (b).)
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California Clean Energy Committee shall recover its costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(3) & (5).)
HOCH , J.
We concur:
ROBIE , Acting P. J.
DUARTE , J.
49