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 Code, § 21050 et seq.) to challenge the City's certification of its final EIR (environmental impact report) and approval of the project.
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.
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
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, pt. 6) (Building Code) and California Green Building Standards Code (Cal. Code Regs., tit. 24, pt. 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.
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 first phase of the development (Gateway I) was approved in 2006 and involved Petrovich's development of 49 acres of agricultural land for retail
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, three hotels with 100 rooms each, a 20,000-square-foot sitdown restaurant, three 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 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."
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
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 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."
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
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.)
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 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 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.
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]rdinating 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."
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."
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 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."
In September 2011, the Woodland City Council voted three to two to certify the final EIR, approve Petrovich's application for annexation, prezone 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.
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."
Despite the findings regarding downtown urban decay, the City approved the project and noted "that (1) 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.
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."
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
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 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.
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 [126 Cal.Rptr.2d 441], 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, fn. & italics omitted, quoting Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26 Cal.Rptr.2d 231, 864 P.2d 502].)
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 carry out or approve which may have a significant effect
"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 [53 Cal.Rptr.3d 821, 150 P.3d 709], fns. omitted (Vineyard).) "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 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, 1546 [124 Cal.Rptr.3d 382], citing Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530 [78 Cal.Rptr.3d 1]; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 [104 Cal.Rptr.2d 326] (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
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.
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
Mitigation measure 4.11-2(b): At the time of future applications for site-specific development, the project applicant shall submit a market study 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, West Woodland, and East Street Corridor," the City still anticipated that "this impact would remain significant and unavoidable."
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 [149 Cal.Rptr. 375, 584 P.2d 512].) 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 [7 Cal.Rptr.3d 868].) 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 [50 Cal.Rptr.3d 636].) 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.
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
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 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. To the extent the argument arises under CEQA, we reject it on the merits.
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
Mitigation measure 4.11-2(b) requires Petrovich "[a]t the time of future applications for site-specific development," to "submit a market study 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.
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 [128 Cal.Rptr. 781],
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 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 [32 Cal.Rptr.3d 177].)
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 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).
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."
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."
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. (Anderson First, supra, 130 Cal.App.4th at p. 1188.) After noting fee-based mitigation 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." (130 Cal.App.4th at p. 1188, italics added.)
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. (130 Cal.App.4th 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 [280 Cal.Rptr. 478] (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 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
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 p. 1180, quoting California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1030 [88 Cal.Rptr.3d 530].) 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.
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.)
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.
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.
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
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 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
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 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 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 Alternative would have greater environmental impacts than the proposed project. (State CEQA Guidelines § 15126.6(c).) ... [¶]
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").
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.
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 added & omitted.) 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.
CCEC argues the City's EIRs did not properly analyze or mitigate the potentially significant energy impacts generated by Gateway II. We agree.
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 argument can be made that the project will have significant environmental impact. (See part IVC., post [examining appen. 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 [87 Cal.Rptr. 908].)" (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163 [217 Cal.Rptr. 893], 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
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."
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.
The entirety of the City's energy impacts analysis for Gateway II comprises less than a page in the draft EIR.
"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.
The City's final EIR adopted the draft EIR's analysis without substantive change.
Appendix F of the Guidelines declares that "[t]he goal of conserving energy implies the wise and efficient use of energy." (Guidelines, appen. 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." (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., § 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., D.4.)
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, appen. F, § II, subd. 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.
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.
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, appen. F, § II, subd. A.1, italics added.) Further, appendix F notes an EIR should consider whether the project involves "Unavoidable Adverse Effects" such as "wasteful, inefficient and unnecessary consumption of energy during the project construction, operation, maintenance and/or removal that cannot be feasibly mitigated." (Id., subd. 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
Although the Building Code addresses energy savings for components of 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 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, § 5.101.1.) 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.)
The introduction to appendix F states that its goals include "increasing reliance on renewable energy sources." (Guidelines, appen. F, § I, subd. (3).) Appendix F further states that "Mitigation Measures may include: [¶] ... [¶] 4. Alternate fuels (particularly renewable ones) or energy systems." (Id., § II, subd. 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 [35 Cal.Rptr.3d 434].)
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.
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.
California Clean Energy Committee shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3) & (5).)
Robie, Acting P. J., and Duarte, J., concurred.
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.
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 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.
