Atherton v. Board of Supervisors

146 Cal. App. 3d 346, 194 Cal. Rptr. 203, 1983 Cal. App. LEXIS 2078

• Court: California Court of Appeal
• Decided: August 22, 1983
• Docket: Civ. 30168
• Status: Published

Opinions

Opinion

SONENSHINE, J.

By resolution, the Orange County Board of Supervisors approved an environmental impact report (EIR)¹ covering the proposed Foothill Transportation Corridor. The corridor consists of numerous potential transportation routes through southern Orange County which would link Interstate 5 south of San Clemente with the Riverside Freeway (SR-91) near the Riverside-Orange County line. Although the major emphasis of both the EIR and the board’s resolution was a multilane freeway, the EIR examined alternative modes of transportation including light rail. The board, by certifying the EIR, amended the transportation element of the general plan to include the Foothill Transportation Corridor.

Appellant sought a writ of mandate seeking to annul the board’s certification of the EIR and adoption of the corridor amendment arguing the EIR was deficient with respect to its discussion of various topics and the board failed to follow procedures required by law. Following denial of the writ of mandate without prejudice,² this appeal followed.

I

“ ‘An express purpose of CEQA is that state agencies give “major consideration” to preventing damage to the environment when conducting their regulatory functions. (Pub. Resources Code, § 21000, subd. (g).) To accomplish this, an environmental impact report is required to be written prior to a project’s approval. (§§ 21100, 21151.) The EIR identifies significant effects of a project on the environment, the way those effects can be mitigated or avoided, and the alternatives to the project. (§ 21002.1, subd. (a).) It is “an informational document which . . . will inform public decision-makers and the general public of the environmental effects of projects they propose to carry out or approve.” (Cal. Admin. Code, tit. 14, § 15012.)’” (Village Laguna of Laguna Beach, Lnc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1026-1027 [185 Cal.Rptr. 41].) (Fns. omitted.)

“ ‘In reviewing the [board of supervisors’ actions], we are limited to deciding “whether there was a prejudicial abuse of discretion [which] 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.” (§ 21168.5.) Thus, we do “not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189 [139 Cal.Rptr. 396].) However, we must be satisfied that the [board] has fully complied with the procedural requirements of CEQA, because only in this way “can a subversion of the important public purposes of CEQA be avoided.” (People v. County of Kern (1974) 39 Cal.App.3d 830, 842 [115 Cal.Rptr. 67].)’ ” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d 1022, 1027.)

Appellant presents a broad-based attack upon the adequacy of the EIR as it addressed the various environmental effects of the proposed corridor. In shotgun fashion he complains the report failed to deal with air pollution (acidity), light rail transit, ridesharing, alternative routes, flood control and maintenance of open space reserves.

“One of the required features of an EIR is a ‘detailed statement setting forth . . . [alternatives to the proposed project.’ (§ 21100, subd. (d).) The Guidelines state that ‘all reasonable alternatives’ should be described, including the ‘no project’ alternative. (Guidelines, § 15143, subd. (d).)” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d 1022, 1027.)

Contrary to appellant’s position, the EIR did address each of these topics. Although in many instances the EIR’s discussion and supporting data were general and vague,³ this was a result of the conceptual nature of the proposed project. The corridor consists of a wide area of land containing everything from mountainous terrain with 30 percent grades to flats crossing water courses. A number of potential routes were considered in addition to evaluating various forms of transportation. Thus the EIR evaluated everything from a light rail train to an eight-lane freeway running on as many as four separate and distinct paths.

Although environmental documents should be prepared as early as feasible in the planning process to enable environmental considerations to influence project design (Cal. Admin. Code, tit. 14, § 15013, subd. (b)),⁴ the degree of specificity required in an EIR should correspond to the degree of specificity involved in the underlying activity which the EIR describes. (Guidelines, § 15147, subd. (a).) The amendment of the county’s general plan to include the Foothill Transportation Corridor represents a conceptual proposal. Once the board proposes the route and mode of transportation, subsequent environmental impact reports will be necessitated by the substantial changes to the transportation element of the general plan before the project is approved.⁵ (Pub. Resources Code, § 21166.)

“While it is clear that the requirements of CEQA ‘cannot be avoided by chopping up proposed projects into bite-sized pieces’ which, when taken individually, may have no significant adverse effect on the environment (Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 726 [117 Cal.Rptr. 96]), it is also true that where future development is unspecified and uncertain, no purpose can be served by requiring an EIR to engage in sheer speculation as to future environmental consequences. (Topanga Beach Renter's Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, 196 [129 Cal.Rptr. 739].)” (Lake County Energy Council v. County of Lake (1977) 70 Cal.App.3d 851, 854-855 [139 Cal.Rptr. 176].) We conclude, after a review of the record, the EIR adequately confronted the environmental concerns and issues presented by the project as it is presently envisioned. (Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 435, fn. 6 [187 Cal.Rptr. 53]; Brentwood Assn. For No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 502 [184 Cal.Rptr. 664].)

II

We now turn to the sufficiency of the board’s findings. The EIR identified numerous significant effects on the environment arising from the proposed Foothill Corridor. These included loss of habitat for animals, loss or destruction of archeological and paleontological sites, loss of open space and potential flooding. No project may be approved or carried out where a significant environmental impact has been found unless the agency makes one or more findings: “(a) Changes or alterations have been required in, or incorporated into, such project which mitigate or avoid the significant environmental effects thereof as identified in the completed environmental impact report, [f] (b) Such changes or alterations are within the responsibility and jurisdiction of another public agency and such changes have been adopted by such other agency, or can and should be adopted by such other agency. [f] (c) Specific economic, social or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report.” (Pub. Resources Code, § 21081.) “Guidelines section 15088, subdivision (a) requires there be a finding or findings for each significant effect and that each finding be written and be ‘accompanied by a statement of the facts supporting each finding.’ ” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d 1022, 1032.)

In Village Laguna, the Second Division of this court found the practice adopted by the Orange County Board of Supervisors in approving an identical EIR and general plan amendment to be violative of Public Resources Code section 21081. Specifically the court found the utilization of a conclusionary statement that the alternatives were “economically infeasible” did not constitute “a statement of facts” necessary to fulfill CEQA’s mandate that the agency’s thinking process be disclosed.⁶ “The conclusionary, almost boilerplate language of the findings is insufficient evidence that such balancing [environmental consequences versus benefit] occurred.” (Id., at p. 1035.)

In approving the EIR and amending the general plan, the board listed 13 separate and significant environmental effects which were identified by the EIR. In each category, the board found the effect could not be reduced to insignificant levels and that mitigation was infeasible. The board did not evaluate the environmental effects when compared to proposed alternatives, nor did it make findings as to what measures could be undertaken to mitigate the effects of the project. “The writing of a perfect EIR becomes futile action if that EIR is not adequately considered by the public agency responsible for approving a project. Indeed, it is almost as if no EIR was prepared at all. In the present case, there is no evidence that the board ever considered any EIR alternative to the project. ...” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, 134 Cal.App.3d 1022, 1035.)

The judgment is affirmed only insofar as it denies appellant’s application for a writ of mandate commanding the board set aside its certification of the EIR. The judgment of the superior court respecting the findings of the board is reversed and the cause is remanded for issuance of the writ of mandate. Appellant to recover his costs on appeal.

Wallin, J., concurred.

1 The heart of the California Environmental Quality Act (CEQA) is the environmental impact report. (Pub. Resources Code, § 21000 et seq. and Cal. Admin. Code, tit. 14, § 15000 et seq.)

2 Although the trial court, in its intended decision, purported to deny the writ of mandate without prejudice as having been brought prematurely, we accept respondent’s suggestion and decide this appeal on the merits. (Cal. Rules of Court, rule 232(a).)

3 For example, the EIR discussed in detail the environmental impact of the disruption and modification of water courses including heightened flood potential. Until a route is selected for further study and the mode of transportation chosen, specific impacts and mitigation measures are purely speculative.

4 Hereinafter referred to as Guidelines.

5 Respondent conceded at oral argument subsequent EIR(s) will be required as the project becomes specific. Nothing in our decision today limits the matters which may be considered at that time.

6 For example, under Cultural and Scientific Resources the Resolution states:

“(1) The corridor has the potential to destroy or displace archaeological resources depending on the specific route chosen. It appears that Alignment A of the northern El Toro Preliminary Alignments would disrupt five known archaeological sites; Alignment B potentially could impact four known archaeological sites; and Alignment C could disrupt one known archaeological site. Not all of the northern El Toro area has been surveyed. Therefore, additional, though currently unknown, sites could be affected adversely.

“(2) Ninety-five percent of the transportation corridor has yet to be surveyed. Therefore, the potential for new paleontological sites is high. As a result, there is the possibility of long costly delays in construction of the corridor from the excavation of existing and/or discovered sites. Of the northern El Toro Preliminary Alignments, Alternative A encounters six known paleontological sites while Alternative B encounters three known sites and Alternative C encounters five known paleontological sites.

“(3) The corridor has the potential to disrupt historical resources and in the most extreme cases, removal of the site may be necessary.

“Certain measures have been proposed which would minimize the impacts on known archaeological resources, known or expected paleontological resources, and known historical resources. However, these measures will not save any of these resources in the way of actual roadway construction or these resources whose location will be exposed to the public, subjecting them to loss by theft. These impacts are considered unavoidable adverse impacts.”