Fifth District Invalidates Fresno Senior Housing Project EIR For Inadequate Analysis Of Thresholds Of Significance

Respondent the County of Fresno authorized the development of an approximately 1,000 acre master planned retirement community in an area zoned agricultural in north-central Fresno County. The project was challenged as being inconsistent with the general plan and the project’s EIR was challenged as providing insufficient detail regarding the disposal of wastewater and air quality impacts.

Here, the County’s General Plan contained a stated goal of promoting the long-term conservation of potentially productive agricultural lands, but, contrary to plaintiffs’ contentions, the policy does not prohibit all rezoning of agricultural land, but, rather, the policy permits growth, including the addition of public facilities and infrastructure, especially where, as here, the project did not propose to convert to nonagricultural uses prime farmland, farmland of statewide importance or land designated as unique farmland or subject to a Williams Act contract or a Farmland Security Zone contract.

Respecting the disposal wastewater, the County originally had proposed that treated wastewater would be used for on-site irrigation and at times stored nearby and seasonally discharged to the San Joaquin River. However, the County’s Planning Commission decided to forego discharging any treated wastewater to the river.

Based on water balance calculations and the testimony of experts, the Court concluded that the “disclosure provides sufficient detail about the location of the effluent application – namely, the Beck Property and the Specific Plan area – to enable the public and decision makers to understand the location of the proposed effluent application and consider its potential impacts.”

The Court of Appeal agreed with the plaintiffs that the EIR’s discussion of air quality impacts lacked sufficient detail. The San Joaquin Valley Air Basin is designated as a severe non-attainment area for ozone and PM10 (particulate matter), that the project emissions would exceed the adopted “thresholds of significance” for particulates (PM10), reactive organic gases (ROG’s) and oxides of nitrogen (NOx), and that the proposed mitigation measures would not be capable of reducing the emissions below the thresholds of significance. While the EIR adequately identified the adverse health impacts (that is, it stated the tons per year of pollutants that the project would generate) it failed to adequately analyze those impacts (for example, the Court stated that “[t]he information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area ….”) In addition, the EIR failed to sufficiently discuss the proposed air quality mitigation. Mitigation measures such as reduction of energy consumption and promoting of recycling and reduce transportation were not quantified to support the claim that they would substantially reduce emissions.
In addition, some of the mitigation measures were improperly deferred.

Respondent the County of Fresno adopted a resolution that certified a final EIR, approved a General Plan Amendment, authorized the Friant Ranch Specific Plan and took other actions that authorized the development of an approximately 1,000 acre master planned retirement community in an area zoned agricultural in north-central Fresno County. The County filed a notice of determination for the Project on February 3, 2011 and plaintiffs timely filed a petition for writ of mandate challenging the approval of the certification of the final EIR and alleging violations of CEQA and the requirement that land use decisions be consistent with the applicable general plan. The trial court denied all of these claims and plaintiffs filed a notice of appeal.

Appellate Decision (Reversed):

The Court of Appeal preliminarily noted that the standard of review applicable to the determination that a project is consistent with a general plan is abuse of discretion (which it equated with the arbitrary and capricious standard) which means that the government action must be invalidated if the governing body did not proceed as required by law, if it made a determination that was not supported by the findings or if it made findings of fact that were not supported by substantial evidence (meaning that a reasonable person could not have reached the same conclusion).

Consistency With General Plan
The Court of Appeal noted that California’s Planning and Zoning Law requires that specific plans, zoning ordinances and other land use approvals be consistent with the applicable general plan. Here, the County’s General Plan contained a stated goal of promoting the long-term conservation of potentially productive agricultural lands, including maintaining agriculturally-designated areas for agricultural use and directing urban growth away from valuable agricultural lands.

In this case, the County interpreted this policy in a reasonable manner because, contrary to plaintiffs’ contentions, the policy does not prohibit all rezoning of agricultural land, but, rather, the policy permits growth, including the addition of public facilities and infrastructure, especially where, as here, the project did not propose to convert to nonagricultural uses prime farmland, farmland of statewide importance or land designated as unique farmland or subject to a Williams Act contract or a Farmland Security Zone contract. The project also was consistent with the County’s Level of Service Policy contained in the general plan’s Transportation and Circulation Element.

Adequacy Of The EIR
Again, preliminarily, the Court of Appeal noted that the CEQA claims are reviewed under the prejudicial abuse of discretion standard, meaning that the agency did not proceed in a manner required by law or its determination is not supported by substantial evidence.

In this case the plaintiffs challenged two aspects of the EIR: the portions addressing the disposal of wastewater generated by the project and the portions addressing air quality impacts of the project.

Disposal Of Wastewater
Respecting the disposal wastewater, the Court noted that, originally, the County had proposed that treated wastewater would be used for on-site irrigation during the summer months and would be stored at the nearby “Beck Property” and/or seasonally discharged to the San Joaquin River. However, after the release of the final EIR, the County’s Planning Commission recommended foregoing discharing treated wastewater to the river.

The plaintiffs argued that the EIR’s lacked sufficient detail regarding the amount and location of wastewater to be applied and also argued that even though the County had decided not to discharge treated wastewater to the river, in effect that would still occur as a consequence of the County adopting the storage option.

The Court reviewed water balance calculations contained in the administrative record, along with the testimony of experts who opined that there was sufficient capacity at the Beck property to allow for the storage of the treated effluent without being required to discharge it to the river. Although the Court noted some discrepancies in the information regarding the storage capacity at the Beck Property, it concluded that the “disclosure provides sufficient detail about the location of the effluent application – namely, the Beck Property and the Specific Plan area – to enable the public and decision makers to understand the location of the proposed effluent application and consider its potential impacts.”

Air Quality Impacts
The Court of Appeal agreed with the plaintiffs that the EIR’s discussion of air quality impacts lacked sufficient detail.

The EIR acknowledged that the San Joaquin Valley Air Basin is designated as a severe non-attainment area for ozone and PM10 (particulate matter), that the project emissions would exceed the adopted “thresholds of significance” for particulates (PM10), reactive organic gases (ROG’s) and oxides of nitrogen (NOx), and that the proposed mitigation measures would not be capable of reducing the emissions below the thresholds of significance.

The plaintiffs contended that the EIR failed to explain the meaning of the exceedances of the thresholds of significance. The Court of Appeal concluded that while the EIR adequately identified the adverse health impacts (that is, it stated the tons per year of pollutants that the project would generate) it failed to adequately analyze those impacts (for example, the Court stated that “[t]he information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area ….”)
As stated by the Court, “there must be some analysis of the correlation between the project’s emissions and human health impacts.”

Adequacy Of Mitigation
The Court of Appeal also concluded that the EIR failed to sufficiently discuss the proposed air quality mitigation. In this case, a dozen separate provisions were offered as mitigation, including measures designed to reduce energy consumption, promote recycling and reduce transportation emissions, and that claim was made that these measures would substantially reduce the project’s air quality impacts. However, the EIR did not quantify this conclusion and, for this reason, the Court stated that this claim should be explained or deleted on remand.

It also was contended by the plaintiffs that some of the mitigation measures were improperly deferred. The Court noted that deferred mitigation is generally prohibited but that there is an exception to this rule where an agency has committed itself to specific performance criteria for evaluating future mitigation based on substitute criteria. In this case, however, the Court concluded that many of the specific mitigation measures lacked performance standards that would allow the County or the public to determine whether substitute measures work as well as the original provisions, and for this reason the Court concluded that “[o]n remand, the CEQA violations involving the substitution claus and the lack of specific performance standards in the mitigation provisions should be addressed.”

Sierra Club, et al. v. County of Fresno, et al., 2014 WL 2199317 (Fifth District Court of Appeal, May 27, 2014)

Trial Court Judge:
Rosenado Pena, Jr.

Appellate Panel:
Judge Franson, Acting Presiding Judge Cornell and Judge Kane, concurring