The Fifth District Court of Appeal last week rejected an EIR on air quality grounds for a senior-oriented housing complex near Friant Dam.
The methodical, linguistically attentive opinion by Justice Donald R. Franson, Jr. toured three realms of environmental review: land, water and air. It turned down objections from environmental and community groups based in the law of land zoning and water impacts, leaning hard on some word definitions to do so. But when it examined the project's mitigation measures in the air, it found the EIR had failed to put foundations under them.
The appellate court sent the decision back to Fresno County's local judge with instructions to have the county describe more specifically what harm might be done by the project's extra air pollution, such as vehicle exhaust, and how the harm would be mitigated in ways the county could measure and enforce.
According to the decision text, the project by Friant Ranch, L.P. would cover about a square mile and a half, mainly of former grazing land. The court says it would build some 2500 housing units, some of them restricted to adults 55 and older. Media reports put the total of units at 2,270. By the court's description the project additionally calls for 250,000 square feet of commercial use and it would all be on 942 acres counting 460 acres of dedicated open space. That sounds large but it was the project's Alternative 3, smaller than some earlier projections.
As clarified on the docket at http://bit.ly/1iN6hpI the case was brought by the Sierra Club, Revive the San Joaquin and the League of Women Voters of Fresno against the county and Friant Ranch LP.
A related suit brought by the City of Fresno moved toward settlement in March with an agreement that the developer would charge a $500 fee for each unit to contribute toward a parks fund. See http://bit.ly/1h1q35r and http://bit.ly/1pNq2SC.
Opponents of the Friant Ranch project greeted the May 27 decision with a victory press conference emphasizing opposition to sprawl and concern over "diverting our already scarce resources to new-town development": http://bit.ly/1mLgDZL. But the developer's counsel told local news station KFSN that the dispute wasn't over and the project's proponents still counted on going forward with it: http://abc30.tv/1iNaREi.
The matter on appeal was a county Supervisors' approval that updated the Friant Community Plan within the Fresno County General Plan, authorized a specific plan for the project, and amended the Friant Redevelopment Plan.
The court found the land element of the proposal was acceptable because the County properly, though controversially, amended the county general plan to change the area's land use designation: from mainly agriculture plus a few other uses, mainly trailer parks, to the commercial, residential and public uses that the project had in mind.
The decision walked through a word-by-word dispute on whether the land use change for the area matched the county's policy to "maintain agriculturally-designated areas for agricultural use" and to "direct urban growth away from valuable agricultural lands to cities, unincorporated communities, and other areas planned for such development where public facilities and infrastructure are available." It quoted the EIR as finding that the land lost to agriculture was neither prime, nor of statewide importance, nor designated as unique, nor subject to preservation contracts, hence that it was not not "valuable agricultural lands" as defined in the policy.
The EIR language had quietly extended the phrase about "public facilities and infrastructure" to include areas where facilities "are available or can be expanded." Plaintiffs objected that the last four words were not in the regulation. But the court chose not to view their appearance in the EIR as impermissible mission creep, in light of an additional policy that discussed installing infrastructure prospectively.
The court found that plaintiffs' objections about traffic congestion under the General Plan's transportation element were not exhausted administratively. Plaintiffs had argued the issues were raised sufficiently at the administrative stage of review by a six-paragraph section in a critical letter by Fresno's city manager. The court quoted the letter as citing projections for "unacceptable levels of service" through crowding on two major roads reaching the project site, and as expressing polite skepticism over the EIR's claim that emergency services would not thereby be affected. But the court rejected those phrases as not placing the county sufficiently on notice of the issues because they didn't mention the problem's relation to the general plan nor the county's LOS Policy -- "in contrast to" other parts of the letter that were more specific in describing standards and stating whether they were met.
As to the law of water -- CEQA review of wastewater disposal provisions, that is -- the court rejected plaintiffs' objections because it found wastewater treatment and disposal were adequately addressed, primarily through a plan to build a new wastewater facility, create an effluent pond in a former gravel quarry, and use treated wastewater for summertime irrigation, principally at the project itself.
The court found inconsistencies in the EIR on the effluent pond's dimensions but worked past them and accepted evidence presented that effluent stored or used locally for irrigation either would not reach the San Joaquin River, or, if it did, would not harm it. It found the EIR presented sufficient detail overall on the volume of wastewater and its disposition -- especially after setting aside discussions of larger wastewater volumes that would have been called for by larger, unapproved versions of the project.
The court rejected complaints that the draft and final EIRs gave too little attention to the hydrogeology of the proposed quarry pond (an issue that the Sierra Club was still reportedly disputing two weeks ago). In doing so, the court distinguished its own 1994 ruling in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, 27 Cal.App.4th 713, saying that, when it found the draft EIR inadequate in that earlier case, it "did not establish new rules of law heightening the disclosure required in a draft EIR or preventing a final EIR from curing a draft EIR's omission of information." Regardless, the court said that in the 1994 case the final EIR was also deficient and "Our holding referred to the final EIR, not the draft." Further, it said the Friant Ranch draft EIR was more specific than the 1994 document to begin with, and then evidence from competing experts had further filled out the administrative record.
Turning to air quality analysis under CEQA, the court said the EIR provided more detail than the one previously found deficient in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 but it was still "short on analysis." It said the Friant Ranch EIR failed sufficiently to connect the dots from the county's existing serious air pollution problems, to the volume of pollution likely to be added by traffic to the new project, to the likely specific effects of those emissions, such as health detriments or days when local air quality standards would not be attained. It found this problem had been sufficiently raised in administrative proceedings because the City of Fresno's objecting letter said the EIR had failed to "disclose the human health related effects of the Project's air pollution impacts."
The court's toughest assessment was of a "mitigation measure" that was actually a list of approaches such as saving energy and encouraging bicycle use. In the nonresidential development areas, the EIR offered mitigations including shade trees in paved areas and catalyst-equipped HVAC systems in the buildings. The list came with an assurance that the mitigations would reduce pollution "substantially".
The court said the EIR was not at fault for failing to explain more carefully how or how much the listed mitigation measures would help, though saying it shouldn't claim pollution reductions would be "substantial" without giving evidence to back up the claim.
On the other hand, the court did insist that the actions to be taken needed to be spelled out somehow: either the EIR should give specific descriptions up front of promised actions whose performance the county could enforce at need, or if it called for "deferred formulation of mitigation", it should provide "specific performance criteria" for designing such measures later. The decision said neither was the case for many of the mitigation measures proposed, and that use of a hedging phrase, "where feasible and appropriate", was not reassuring, but only "add[ed] to the vagueness". (This central part of the ruling was reminiscent of the recent Woodland case, though it's not cited. See http://www.cp-dr.com/articles/node-3472).
The court found the county did adequately consider whether compensation through off-site emission reduction programs might help, in that it said the possibility was going to be considered during the air district's Indirect Source Review. For full approval, the project would need to be approved by regional water and air quality boards as well as the county.
The case is at http://www.courts.ca.gov/opinions/documents/F066798.PDF.
