Highway 68 Coal. v. Cnty. of Monterey

222 Cal. Rptr. 3d 423, 14 Cal. App. 5th 883, 2017 WL 3668568, 2017 Cal. App. LEXIS 744
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 31, 2017
DocketH042891
StatusPublished
Cited by16 cases

This text of 222 Cal. Rptr. 3d 423 (Highway 68 Coal. v. Cnty. of Monterey) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Highway 68 Coal. v. Cnty. of Monterey, 222 Cal. Rptr. 3d 423, 14 Cal. App. 5th 883, 2017 WL 3668568, 2017 Cal. App. LEXIS 744 (Cal. Ct. App. 2017).

Opinion

The many environmental impacts addressed in the DEIR included the impacts on the water supply and traffic. The DEIR stated that the Reduced Density/Redesigned Project Alternative would incorporate a storm water retention/percolation system to capture runoff from three areas: the project site, the surface area of the adjacent service station site, and the adjacent hillside. This alternative would reduce water consumption due to reduced building square footage and the use of LEED equivalent fixtures and landscaping. Based on the reports of Whitson Engineers, the DEIR stated that implementation of the Reduced Density/Redesigned Project Alternative would result in recharge of the groundwater basin and potentially no significant impact to groundwater resources.

Regarding traffic impacts, the DEIR included an analysis of the project's impacts on vehicle traffic at several Highway 68 intersections in the vicinity of the project. The DEIR stated that the project would have significant *888unavoidable impacts on two intersections, including the intersection of Highway 68 and Corral de Tierra Road, despite the proposed mitigation measures.

C. The County's Approval of Omni's Project and Final EIR

Several public hearings regarding the project were held before the County's Board of Supervisors in 2011 and 2012. During that time, the project was redesigned by County staff and Omni to address the Board of Supervisor's concerns, which included reducing the size of the shopping center. There was also an investigation of the evidence of soil and water contamination from the removal of underground gas tanks in an adjacent parcel.

On February 7, 2012, the Board of Supervisors adopted Resolution No. 12-039, which certified the final EIR (FEIR) and adopted a statement of overriding considerations. The resolution states that "[t]ogether, the DEIR and the Responses to Comments constitute the final EIR on the project."

The Board of Supervisor's findings, as stated in Resolution No. 12-039, for certifying the FEIR and adopting a statement of overriding considerations included the following description of the project: "The project which the County is considering for approval concurrently with Certification of the EIR is [Omni's] proposed reduced density 99,970 square foot alternative which is similar to the reduced density alternative.... The 99,970 square foot alternative presented by the applicant is the environmentally superior alternative because as a variant of the reduced density alternative it also includes a reduction in building area and mass, a corresponding reduction in traffic and increases the landscape buffers along the street frontages of the site."

Resolution No. 12-039 also included the following findings regarding water impacts: "Potentially significant impacts on ground water have been mitigated to a less than significant level through the redesigned 99,970 square foot retail center including a storm water collection and *428groundwater recharge system proposed by the applicant and approved by the Board of Supervisors. This design will result in a net water balance for operation of the retail village at this location." As to traffic impacts, the Board of Supervisor's findings stated, among other things, that the DEIR had found that the project would have direct impacts on traffic that could not be mitigated to a less than significant level.

On February 7, 2012, the Board of Supervisors adopted a second resolution concerning Omni's project, Resolution No. 12-240, which approved the combined development permit and general development plan for the project. Resolution No. 12-240 included the Board of Supervisor's findings that the project, as conditioned, was consistent with the 2010 Monterey County General Plan, the Toro Area Plan, and the Monterey County Zoning Ordinance.

*889Among other findings included in Resolution No. 12-240, the Board of Supervisors stated that "[t]he project has an adequate long-term water supply and manages development in the area so as to minimize adverse effects on the aquifers and preserve them as viable sources of water for human consumption." The Board of Supervisors further found that "[t]he existing groundwater basin in the El Toro area is in overdraft and this has resulted in the placement of the 'B-8' Zoning Overlay District in an area of the Toro Area Plan including the project site. The project would use a maximum of 9.0 acre-feet per year (AFY) of water and the underground water recharge system approved for the 99,970 square foot project would return 9.66 AFY of water to the underground basin which results in a net positive water balance ... [¶] ... [¶] provided that the development can be found to not adversely affect the constraints which caused the 'B-8' District to be applied to the property."

D. The Petition for Writ of Mandate

In March 2012, Highway 68 filed a petition for writ of mandate challenging the County's approval of Omni's shopping center project on the ground that County had failed to comply with CEQA. Highway 68 sought a writ of mandate directing the County and the Board of Supervisors to set aside their February 7, 2012 approvals of the project and to prepare and circulate a legally adequate EIR in any subsequent action to approve the project.

Highway 68 alleged that the specific CEQA violations included (1) the EIR failed to analyze the water rights for the project; (2) the project's "recharge scheme" to "capture stormwater runoff from the project site and put it in underground chambers" was uncertain without measurement of the amount of groundwater recharge; (3) the EIR failed to investigate the traffic impacts on segments of Highway 68 that were already at the lowest level of service; (4) the EIR failed to adequately address the project's impact on greenhouse gases; (5) the environmental review was improperly piecemealed because the adjacent gas station was not included; and (6) the EIR did not adequately address the impacts on sewage capacity.

In addition, Highway 68 asserted that the project was inconsistent with the 2010 General Plan because Policy PS-3.2 requires projects to have a long term sustainable water supply. Highway 68 also asserted that the project was inconsistent with the Toro Area Plan because a parking lot was placed in the required 100-foot setback.

E. Intended Decision and Interlocutory Remand

After the trial court heard argument on Highway 68's writ petition and issued an intended decision, objections to the intended *429decision were filed *890and in June 2014 the court heard further argument. On July 29, 2014, the trial court entered an order of interlocutory remand that included the court's rulings on Highway 68's claims of CEQA violations. The trial court rejected Highway 68's claims of CEQA violations, but determined that an interlocutory remand was appropriate with regard to an issue of general plan consistency.

The trial court's determination that an interlocutory remand should issue arose from the court's finding that Policy PS-3.1 of the County's 2010 general plan requires "a 'specific finding and supporting evidence' of a

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222 Cal. Rptr. 3d 423, 14 Cal. App. 5th 883, 2017 WL 3668568, 2017 Cal. App. LEXIS 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/highway-68-coal-v-cnty-of-monterey-calctapp5d-2017.