Court Allows Proponent to Drop Mitigations
A project proponent can eliminate previously adopted mitigation measures so long as the proponent provides a reason for the change that is supported by substantial evidence, the First District Court of Appeal has ruled. But the court also decided that the lack of mitigation measures created a conflict with the general plan, so the court invalidated the project.
The ruling appears to be the first that specifically addresses when and how a project proponent can drop mitigation measures that had been identified in an earlier environmental impact report and included as conditions of approval.
In the case at hand, the Napa County Board of Supervisors adopted an updated specific plan and a "final subsequent EIR" (FSEIR) for 2,945 acres surrounding the Napa Airport in October 1998. The updated plan did not include a number of traffic mitigation measures contained in the original specific plan that supervisors adopted in 1986 because the county later found them to be infeasible.
"The claim that once a mitigation measure is adopted it never can be deleted is inconsistent with the legislative recognition of the need to modify land-use plans as circumstances change," Justice William Stein wrote for the court. "It also is true that mistakes can be made and need to be rectified, and that the vision of a region's citizens or its governing body may evolve over time."
The county's attorney, Arthur Coon, of Miller Starr and Regalia, said that the California Environmental Quality Act does not hold the county to old, infeasible mitigation measures. "With changing times and changing circumstances, [mitigations] may not be feasible," he said.
The court's ruling, Coon said, "is the clearest statement of what we thought the law always was."
But J. William Yeates, an attorney for project opponents, said that the court appears to have opened a loophole in CEQA.
"They addressed an issue that had never really been addressed before, and that is what happens when a project applicant just walks away from approved mitigation measures?" Yeates said. This case suggests that if the applicant can prove that mitigations are infeasible, "he would be off the hook. Yet he never would have gotten the project built without approval of the mitigation measures. That could be the future rub of this decision," Yeates said.
Despite its loss on the CEQA question, the project opponents did win the case. The court ruled that the updated specific plan's lack of mitigations for traffic and housing, and the FSEIR's inadequate discussion of water and sewer treatment made the updated specific plan incompatible with the general plan. Coon has requested a rehearing, arguing that the court made a number of factual errors.
In 1986, the Napa County Board of Supervisors adopted a specific plan and EIR for the Airport Industrial Area. The plan called for about 1,900 acres of industrial development around the Napa Airport, which lies between the City of Napa and the community of American Canyon (which has since incorporated). In 1994, the county began updating the specific plan. Because of intense interest and complex issues, the county prepared a draft subsequent EIR, a supplement to the draft subsequent EIR and an addendum to the draft subsequent EIR. The board adopted the updated specific plan and new EIR in October 1998. As in 1986, the county had to make overriding findings because there were environmental impacts--including traffic congestion--that could not be fully offset.
Two groups - Napa Citizens for Honest Government and North Bay Citizens for Responsible Transportation - and the City of American Canyon filed a lawsuit alleging that the new EIR was inadequate in several ways, and that the specific plan conflicted the county general plan's circulation and housing elements, creating an internal inconsistency that invalidated the general plan. Napa County Superior Court Judge Richard Bennett agreed that the EIR was inadequate and he invalidated the specific plan, but he ruled that the challenge to the general plan was time barred. A unanimous three judge panel of the First District Court of Appeal, Division One, upheld the ruling but differed with some of Judge Bennett's conclusions.
With regard to traffic, the appellate panel ruled that the county had justified its elimination of traffic mitigation measures approved in 1986. The FSEIR said that improvements to Highways 12 and 29 were too expensive, they would require extensive right-of-way acquisition and they would produce visual impacts. The FSEIR contained only one mitigation measure for traffic - preparation of a traffic study and a review of potential funding sources and legislative remedies. The court ruled that this was enough to satisfy CEQA. However, the lack of specific traffic remedies conflicted with the county's own general plan, the court held.
"If the Updated Specific Plan will frustrate the General Plan's goals and policies, it is inconsistent with the County's General Plan unless it also includes definite affirmative commitments to mitigate the adverse effect or effects," Justice Stein wrote. "The County cannot state a policy [in the general plan] of reducing traffic congestion, recognize that an increase in traffic will cause unacceptable congestion and at the same time approve a project that will increase traffic congestion without taking affirmative steps to handle that increase."
The court addressed housing in a similar fashion. It ruled that the FSEIR and an associated market analysis presented an adequate discussion of housing issues. The documents concluded that buildout of the Airport Industrial Area would generate the need for 5,457 housing units and suggested that many of the homes would be built in American Canyon or Napa. But, even though the specific plan area is entirely commercial and industrial, the county needed to make a commitment to provide housing to satisfy its general plan, the court held.
"[The county] cannot state goals of providing adequate housing to meet the needs of persons living in the area, and at the same time approve a project that will increase the need for housing without taking affirmative steps to handle that increase," Stein wrote.
The county argued - and maintains in its request for a rehearing - that the general plan policies in question were advisory, not mandates, and that the lack of specifics that concerned the appellate panel did not set the updated specific plan in conflict with the general plan.
Yeates, attorney for the project opponents, said that it may have actually been better for his clients to win on the issue of general plan consistency because now the only way the county can stick with the updated specific plan would be to amend the general plan. And eliminating policies regarding improvements to congested Highways 12 and 29 would not be politically popular, he said.
As for water and sewer services, the court ruled that the EIR was too speculative. The EIR assumed that American Canyon would supply water to the project, even though American Canyon is pursuing an agreement with the City of Vallejo to prevent a forecasted water deficit in American Canyon by 2015. The EIR further says that Napa Sanitary District's Soscol Treatment Plant will serve the development, assuming that capacity will become available when American Canyon - which already uses the Soscol plant - will arrange other treatment services.
"We conclude that the FSEIR need not identify and analyze all possible resources that might service the Project should the anticipated resources fail to materialize. Because of the uncertainty surrounding the anticipated sources for water and wastewater treatment, however, the FSEIR also cannot simply label the possibility that they will not materialize as 'speculative' and decline to address it," Stein wrote.
Coon said that the court got this wrong. American Canyon has a signed contract with Vallejo to receive more water, and American Canyon has committed to build its own sewer plant, he said. The court also overlooked the county's mitigation measure that prevents development if facilities are not available, he added.
The court also ruled that the new EIR did not adequately address the project's impacts on endangered steelhead trout in two streams.
Finally, the court ruled that opponents' challenge of the general plan's validity was too late. Besides, the court ruled, "if the Updated Specific Plan is inconsistent with the General Plan, the Updated Specific Plan is invalid; but the General Plan is unaffected."
Napa Citizens for Honest Government v. Napa County Board of Supervisors, No. A089095, 01 C.D.O.S. 6732, 2001 DJDAR 8157. Filed August 3, 2001.
For Napa Citizens: J. William Yeates, (916) 860-2000.
For the county: Arthur F. Coon, Miller, Starr and Regalia, (925) 935-9400.