Opinion
A145573
05-16-2017
COASTAL HILLS RURAL PRESERVATION, Plaintiff and Appellant, v. COUNTY OF SONOMA et al., Defendants and Respondents; JACK PETRANKER et al., Real Parties In Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV255694)
This case is before us a second time, our first opinion in this matter having been filed on August 31, 2016. (Coastal Hills Rural Preservation v. County of Sonoma (Aug. 31, 2016, A145573), review granted and opn. ordered nonpub. Nov. 22, 2016, S237655 (Coastal Hills I).) Subsequently, the Supreme Court granted the petition for review filed by plaintiff Coastal Hills Rural Preservation (CHRP), ordered our opinion depublished, and transferred the matter to us for reconsideration following that court's recent decision in Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937 (San Mateo Gardens). The specific page references in the Supreme Court's order focus our reconsideration on a point relevant to our discussion of the how courts are to evaluate a public agency's response to modifications made to projects initially approved via negative declaration under the California Environmental Quality Act (CEQA). As we will explain, we conclude the County of Sonoma's decision to issue a mitigated negative declaration (MND) rather than a formal environmental impact report (EIR) complies with the relevant CEQA regulations. No change in our disposition of the case is necessary.
Public Resources Code section 21000 et seq. Unless otherwise indicated, all further statutory references are to that code.
PROCEDURAL BACKGROUND
This case concerns a supplemental MND (SMND) adopted by defendant the County of Sonoma (County), approving the third in a series of master use permits (MUPs) for real parties in interest Jack Petranker and the Head Lama of the Tibetan Nyingma Meditation Center (Ratna Ling). CHRP contends the County violated CEQA by approving the MUP without requiring preparation of a formal EIR. After CHRP appealed from the trial court's denial of its petition for writ of mandate, we affirmed the lower court's ruling in a published decision. (Coastal Hills I, supra, A145573.)
On November 22, 2016, the Supreme Court granted CHRP's petition for review, ordered our opinion depublished, and transferred the matter to us for reconsideration, specifically referencing a three-page excerpt from that court's recent San Mateo Gardens opinion (San Mateo Gardens, supra, 1 Cal.5th at pp. 957-959 & fn. 6), as well as section 15384 of the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). We have reexamined our initial opinion in this case, which we incorporate by reference, and we have received supplemental briefing from the parties and from amicus curie Friends of the Gualala River and Forest Unlimited.
DISCUSSION
San Mateo Gardens
In San Mateo Gardens, the Supreme Court reviewed an opinion from this division which held that a subsequent modification of a project previously approved by an MND was a "new project," triggering an initial EIR study. (San Mateo Gardens, supra, 1 Cal.5th at pp. 946-947.) The Supreme Court reversed, invalidating the "new project test." (Id. at p. 944.) In doing so, the court clarified that "the agency's environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on any abstract characterization of the project as 'new' or 'old.' " (Ibid.)
The San Mateo Gardens opinion sets forth a two-part analysis that courts are to apply when reviewing an agency's actions under CEQA with respect to modifications made to a project previously approved by a negative declaration (including an MND): "An agency that proposes project changes . . . must determine [(1)] whether the previous environmental document retains any relevance in light of the proposed changes and, if so, [(2)] whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence." (San Mateo Gardens, supra, 1 Cal.5th at p. 944.)
In the three pages of the San Mateo Gardens opinion that the Supreme Court has asked us to consider, the court addressed one of the plaintiff's challenges to the application of the substantial evidence standard of review under CEQA Guidelines section 15162, which pertains to projects previously approved by negative declarations: "Plaintiff argues that application of this substantial evidence standard to projects initially approved via negative declaration creates a loophole in the statutory scheme, allowing agencies to evade their obligation to prepare an EIR based on the more demanding 'fair argument' standard, so long as the potential environmental effects of the project are caused by changes in the project after a negative declaration had been approved." (San Mateo Gardens, supra, 1 Cal.5th at p. 957.) The court concluded the perceived loophole does not exist because, under CEQA Guidelines section 15162, "when a project is initially approved by negative declaration, a 'major revision' to the initial negative declaration will necessarily be required if the proposed modification may produce a significant environmental effect that had not previously been studied." (Id. at p. 958.)
See Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002.
In an accompanying footnote, which the Supreme Court has also directed us to consider, the court distinguished language used in Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 (Benton), noting Benton had concluded "that no subsequent or supplemental EIR was required in that case because, among other things, substantial evidence supported the agency's conclusion that '[t]he environmental impacts of the modification were not significant . . . .' " (San Mateo Gardens, supra, 1 Cal.5th at p. 958, fn. 6.) The court clarified that "the inquiry prescribed by the Guidelines is not whether the environmental impacts of the modification are significant, but whether the modification requires major revisions to the negative declaration because of the involvement of new, potentially significant environmental effects that had not previously been considered in connection with the earlier environmental study." (Ibid.)
CEQA Guidelines Section 15384
In its transfer order, the Supreme Court also asked us to consider CEQA Guidelines section 15384, which defines the term "substantial evidence":
"(a) 'Substantial evidence' as used in these guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.
"(b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts."
Issue in This Appeal
This appeal focuses on the County's decision to change the status of four large steel-framed membrane storage tents from temporary to permanent. The storage tents are used to house Ratna Ling's "Sacred Text Treasury." CHRP notes the subject property is surrounded by dense forest and steep slopes, and has a high fire risk designation. The SMND determined that the project's wildland fire-related impacts would not be significant, finding that adherence to applicable fire regulations and permit conditions (governing, for example, fire sprinklers, adequate water supply for fire suppression, and defensible space) will minimize the risk of loss due to wildland fires. CHRM challenges this determination.
Standard of Review
CHRP contends in its supplemental brief that in San Mateo Gardens the Supreme Court "affirmed the application of the fair argument standard of review" as to determinations of whether a modified project is treated as "new" versus "supplemental." It also asserts the opinion "holds that an EIR process is triggered when a modified project 'might have a significant environmental impact not previously considered . . .' in the prior negative declaration" (citing San Mateo Gardens, supra, 1 Cal.5th at p. 959). CHRP characterizes the quoted language from the opinion as reflecting "CEQA's unique 'fair argument' standard of review." CHRP also asserts that the high court's reference to CEQA Guidelines section 15384 indicates that the court "recognizes what is commonly called the 'fair argument' standard as within the definition of substantial evidence."
For purposes our analysis here, we will assume that the "fair argument" standard applies. Under that standard, an EIR is generally required whenever a project "may" have a significant effect on the environment. (San Mateo Gardens, supra, 1 Cal. 5th at p. 957.) In cases that come within CEQA's subsequent review provisions, we consider whether the proposed modifications will involve " '[s]ubstantial changes' that 'require major revisions of the previous EIR or negative declaration due to the involvement' of new or significantly more severe environmental effects." (Ibid.) As the Supreme Court explained in San Mateo Gardens, "a 'major revision' to the initial negative declaration will necessarily be required if the proposed modification may produce a significant environmental effect that had not previously been studied. (CEQA Guidelines, § 15162.)" (San Mateo Gardens, at p. 958.) On this point, CHRP bears the burden of proof. "Upon the issuance of a mitigated negative declaration, ' "the project opponent must demonstrate by substantial evidence that the proposed mitigation measures are inadequate and that the project as revised and/or mitigated may have a significant adverse effect on the environment." ' " (W.M. Barr & Co., Inc. v. South Coast Air Quality Management Dist. (2012) 207 Cal.App.4th 406, 434.)
A "significant effect on the environment" means "a substantial, or potentially substantial, adverse change in the environment." (§ 21068; see CEQA Guidelines, § 15382.)
CHRP does not argue that there is no substantial evidence to support the County's decision to proceed under CEQA's subsequent review provisions. (See San Mateo Gardens, supra, 1 Cal.5th at p. 953 ["We expect occasions when a court finds no substantial evidence to support an agency's decision to proceed under CEQA's subsequent review provisions will be rare, and rightly so . . . ."].)
The SMND's Mitigation Measures
The SMND imposes a total of 97 conditions of approval on the subject project, 16 of which relate to fire safety and wildland fire risk. These 16 conditions are: (1) Full compliance with County regulations pertaining to zoning, the California Building Code (Cal. Code Regs., tit. 24, pt. 2 (Building Code)), hazardous materials, and the California Fire Code (Cal. Code Regs., tit. 14, pt. 9 (Fire Code)); (2) acquisition of building permits for construction of any new structures or changes to existing structures; (3) annual fire safety inspections; (4) preparation of an emergency response plan subject to the approval of a Fire Code official; (5) securing all applicable Fire Code operational permits; (6) obtaining applicable Fire Code construction permits; (7) ensuring that all existing and newly constructed or approved roadways and buildings provide for safe access for emergency fire apparatus; (8) ensuring an available emergency water supply for fire protection, including installation of fire hydrants; (9) reduction of volume and density of flammable vegetation, including a vegetation management maintenance agreement approved by the county fire marshal; (10) bringing all existing buildings into compliance with the requirements of the Fire Code; (11) installation of fire protection systems within buildings and structures; (12) provision for emergency responder radio coverage system, (13) prior to occupancy, written verification that all required improvements have been installed; (14) payment of $2,500 per year to Timber Cove Fire Protection District (TCFPD) for training related to suppressing fires at the Ratna Ling facility; (15) good faith efforts to provide volunteers for the TCFPD; and (16) maintenance of an on-site fire engine and installation of any additional on-site infrastructure deemed necessary by the County's fire marshal. In approving the MUP, the County found that all potentially significant environmental impacts will be mitigated to less than significant with the adoption of the mitigation measures, and concluded there was no substantial evidence in the record to support a contrary determination.
The sole issue presented here is whether reclassifying the four storage tents as permanent structures creates a significant risk of wildland fires in light of the mitigation measures contained in the SMND. In our prior opinion, we concluded "the record shows substantial evidence supports the Board's conclusion that the fire risks posed by the storage tents were adequately mitigated." (Coastal Hills I, supra, A145573.) CHRP asserts there is substantial evidence to support a fair argument that the project modification presents a significant fire danger, in large part due to conferring permanent status on tents having "questionable flammability protection."
CHRP argues that no prior MND had specifically studied the fire risk posed by the four storage tents or the expanded press operation, as these items were not part of the 2004 or the 2008 MNDs. Assuming for purposes of argument that this is true, this point does not lead inexorably to the result CHRP seeks, namely, to compel the County to prepare an EIR in lieu of the SMND. As the court in San Mateo Gardens noted: "[I]f the project modification introduces previously unstudied and potentially significant environmental effects that cannot be avoided or mitigated through further revisions to the project plans, then the appropriate environmental document would no longer be a negative declaration at all, but an EIR." (San Mateo Gardens, supra, 1 Cal.5th at p. 958, italics added.)
Ratna Ling correctly notes the religious printing facility is not part of the MUP approval at issue in this case.
Even if a project may have a significant effect on the environment, a mitigated negative declaration can be appropriate, but "only if project revisions would avoid or mitigate the potentially significant effects identified in an initial study 'to a point where clearly no significant effect on the environment would occur, and . . . there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.' " (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331, italics added.) In this context, "may" means a reasonable possibility of a significant effect on the environment. (§§ 21082.2, subd. (a), 21100, 21151, subd. (a); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927; League for Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905.)
" 'Mitigated negative declaration' means a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." (§ 21064.5.)
In our prior opinion, we followed Benton, supra, 226 Cal.App.3d 1467 and concluded that substantial evidence supported the Board's conclusion that any fire risk posed by printing operation and the storage tents was adequately addressed by the extensive mitigation measures attached to the permit approval. (Coastal Hills I, supra, A145573.) The San Mateo Gardens opinion clarifies that our task on review is to determine whether the project modification (particularly with respect to the storage tents) requires "major revisions to the negative declaration because of the involvement of new, potentially significant environmental effects that had not previously been considered in connection with the earlier environmental study." (San Mateo Gardens, supra, 1 Cal.5th at p. 958, fn. 6, italics added.) Even if the project modification introduces previously unstudied and potentially significant environmental effects that necessitate "major revisions" to existing environmental documents, an EIR will not be triggered unless it is shown that these effects cannot be avoided or mitigated through further revisions to the project plans. (See ibid.)
CHRP Has Not Satisfied Its Burden
The County and Ratna Ling note that Vern Losh, the prior chief/director of the County's Department of Emergency Services, opined that the likelihood of a fire starting in the storage tents is "close to zero." State records on which he relied confirm there is a low likelihood of a structure fire starting a wildland fire. He also noted there is a very low likelihood of a fire starting in the tents because they have only minor electrical service and the subject property is a nonsmoking facility. Moreover, if a fire were to start, the tents are equipped with automatic fire sprinklers and heat detection systems.
Under CEQA Guidelines section 15384, subdivision (b), substantial evidence "shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (Italics added.)
Additionally, Losh noted the tents are surrounded by 200 to 300 feet of defensible space, and they had been inspected by the County's fire marshal, who concluded they were safe. Also, there are millions of gallons of water available on the subject property that could be used to fight a significant fire, and the County has mutual aid agreements with other jurisdictions to supplement emergency responses. Based on these factors, Losh concluded: "[T]here are multiple layers of fire protection that are in place, maintained and inspected regularly at Ratna Ling. Given these mechanisms, the non-combustible nature of the membrane material, and the fact that structure fires rarely lead to large, wild land fires, there is a very low likelihood of a fire starting in the Sacred Text storage structures or a fire growing into a larger fire that would affect the Cazadero/Fort Ross community."
CHRP's principal line of attack on the SMND's mitigation measures is to cite to the opinion of Michael Singer, the TCFPD chief. Singer testified that his volunteer fire department lacks training and equipment to respond appropriately to "industrial" fires. He also opined that the storage tents present a fire danger because they fail to satisfy the flammability standards under the Wildland Urban Interface requirements of the 2008 Building Code. We observe that legal interpretations are not factual evidence. (See CEQA Guidelines, § 15064(f)(5) ["Argument" not supported by facts is not substantial evidence].) Further, the version of the Building Code relied on by Singer was not in effect at the time the building permits for the storage tents were filed.
We considered this point in our prior opinion, observing that "no membrane fabric structures currently meet the higher standards . . . ." (Coastal Hills I, supra, A145573.)
The complaint that the County disregarded TCFPD's requests for additional equipment, training, and funding appears questionable. CHRP acknowledges that the fire protection mitigation measures imposed on the new project include $2,500 annual payments to TCFPD, good faith efforts to provide two volunteer firefighters, and an on-site Type 2 fire engine staffed by volunteers who will be "trained and qualified" in its operation. CHRP claims reliance on neighboring fire departments to mitigate the need for a Type 1 fire engine is insufficient due to an excessive response time. It also asserts that " 'good faith volunteer firefighters' " "are by definition neither reliable nor capable of fighting an industrial fire." These points are unsubstantiated.
CHRP does not dispute that Ratna Ling previously donated a new fire truck costing $280,000 to the TCFPD, along with $15,000 worth of supplemental equipment.
The County determined that TCFPD already has a Type 1 fire engine.
We note "the obligation to provide adequate fire and emergency medical services is the responsibility of the [local government]. [Citation.] The need for additional fire protection services is not an environmental impact that CEQA requires a project proponent to mitigate. Section 15382 of the CEQA Guidelines defines 'significant effect on the environment' as 'a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant.' " (City of Hayward v. Trustees of California State University (2015) 242 Cal.App.4th 833, 843.)
While conceding the County required sprinkler systems for the storage tents, CHRP claims that automatic sprinklers do not eliminate fire risk in rolled paper storage warehouses. This thrust of the argument is based more on speculation than fact, as CHRP does not cite to any evidence in the record to support the claim that the specific sprinkler system on the subject property is subject to failure. Further, CHRP erroneously asserts the project presents a risk of high-piled combustible storage. The County and Ratna Ling cite to evidence in the record showing that sprinklers are extremely effective, and that the fire marshal inspected the storage tents and found there was no high-piled storage.
CHRP also contends that the County did not require the flame-resistant tent fabric to be retreated or replaced even though the treatment is only designed to last for 10 years. However, the record does not contain evidence that the tent fabric has, in fact, degraded. CHRP merely cites to a comment made by the fire marshal concerning the structures' warranty, not whether the fabric itself was in danger of failing. As the site is subject to annual fire inspections, the fire marshal will have the authority to order the membranes to be retreated or replaced if they fall out of compliance with applicable code requirements.
CHRP disagrees with the County's conclusion that the tents do not represent an "industrial use," asserting the County failed require any mitigation measure to reduce the industrial fire risk identified by the TCFPD, though it concedes the fire marshal signed off on the conditions of approval. However, it is uncontested that the tents are used for storage only, and that no active industrial uses take place inside them. CHRP also faults the County for deferring other potential mitigation measures to the future, but it does not indicate why this undermines the mitigation measures the County has imposed.
CHRP asserts the County erred in relying on the tents' compliance with all applicable Building Code standards because it exempted the tents from the newer standards relating to fire. The County and Ratna Ling observe that the exemption from the newer standards is countywide and is not unique to the subject property. CHRP's premise that the membranes are not up to current safety standards fails to account for all the mitigation measures discussed above, including the sprinkler system, heat detection, and defensible space. That aspects of the Building Code have been updated is not evidence that the comprehensive fire safety requirements imposed on the site are inadequate. CHRP also claims the County failed to consider the risks of "ember-borne fire," asserting this failure accounts for the limited facts in the record to support its own arguments. However, the claim does not alter the fact that the fire marshal personally inspected the site and deemed the site safe after considering all the fire suppression measures to be imposed.
CONCLUSION
In light of entire record, and in view of the mitigation measures contained in the SMND, we conclude CHRP has failed to meet its burden of citing to substantial evidence to support a fair argument that reclassifying the existing temporary storage structures as permanent might create potentially significant environmental effects. To the extent the modified project introduces previously unstudied and potentially significant environmental effects, substantial evidence supports the conclusion that these effects have been "avoided or mitigated" as a result of the numerous fire risk reduction measures imposed by the County. CHRP does not offer substantial evidence to the contrary, instead relying primarily on "[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment" (CEQA Guidelines, § 15384, subd. (a)). The County therefore is not compelled to conduct an initial EIR study with respect to the modified project.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.