Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.

Standing

On appeal, Walmart alleged that the plaintiff/respondent Rialto Citizens lacked standing the challenge the project approvals “because neither it nor any of its members are beneficially interested in the issuance of the judgment or writ” and further, since Rialto Citizens is a corporate entity, it had to (but could not) meet the test for public interest standing outlined in the Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223 case. The court of appeal held that Rialto Citizens had public interest standing, thus, it was unnecessary for Rialto Citizens to prove it had a beneficial interest in the outcome of the case.

For those new to CEQA, as a general rule, a CEQA litigant must be “beneficially interested” in the issuance of a petition for writ of mandate to have standing to challenge an agency approval. However, there is an exception to that rule – the “public interest” exception. Otherwise known as “citizen suit standing”, the public interest exception “‘applies where the question is one of public right and the object of the action is to enforce a public duty – in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced [Citations.].’” (Rialto Citizens, supra, (2012) 208 Cal.App.4th at p. 914 [citing Waste Management, supra, (2000) 79 Cal.App.4th at pp. 1236-1237].) However, citing to the Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, the appellate court cautioned that, “In some cases, ‘[t]he policy underlying the exception may be outweighed by competing considerations ….’” [Citation.] (Id. at p. 915.) The court then proceeded to find that Rialto Citizens had no commercial or competitive corporate interests that would undermine or override its public interest standing.

Defective Notice Of A Public Hearing Not Shown To Be Prejudicial And Thus, Was Harmless Error

The City issued a notice of public hearing before the city council on the project for July 1, 2008. The notice did not specify the planning commission’s recommendations on the proposed plan amendments or the development agreement.  Both the trial and appellate courts held that the notice violated Government Code section 65094 as interpreted in Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877 (EDP). Notably, although both courts also found that the court’s holding in the EDP case was, as Walmart argued, technically dicta, they held that due to the policy considerations regarding full public participation, Section 65033 required that the planning commission’s recommendations being included as a necessary part of “the general explanation of the matter to be considered” as required by Section 65094. Still, in reading the plain language of Section 65010, the appellate court determined that because Rialto Citizens did not show prejudice via a substantial injury or the probability of a different result, and because the trial court made no finding of any prejudice, the record did not reflect that the defective notice of hearing actually prejudiced Rialto Citizens or any other party. In sum, failure of the notice to include the planning commission’s recommendations on the plan amendments and development agreement was harmless error.

Erroneous Approval Of The Development Agreement Not Shown To Be Prejudicial And Thus, Was Harmless Error

The approval of a development agreement requires a finding by the legislative body that the terms of the agreement are consistent with the agency’s general plan and any applicable specific plans. (Govt. Code §65867.5, subds. (a) and (b).) In this case, Rialto Citizens argued and the trial court held that the city’s approval of the development agreement was invalid because the City failed to make the consistency finding. In reversing the trial court’s invalidation of the development agreement, the appellate court held that “the court had to find that the absence of the consistency finding resulted in prejudice and substantial injury and that a different result (e.g., disapproval of the ordinance) was probable absent the omitted finding.” Rialto Citizens, supra, (2012) 208 Cal.App.4th at p. 922.

The Project Description Was Sufficient

Rialto Citizens also contended that the EIR’s project description was deficient because it failed to include the development agreement as one of the required project permits/approvals. The trial court agreed, but the appellate court reversed on the grounds that prejudice was not shown, as is required by CEQA – the approval of the development agreement was noticed and considered at public hearings. As a result, the fact that the development agreement was not included in the list of permits/approvals in the EIR’s project description did not undermine informed public participation or decisionmaking.

Cumulative Impact Analyses On Traffic And Air Quality Were Adequate

Rialto Citizens also challenged the EIR’s cumulative traffic analysis on the grounds that the City did not use a list of past, present, and probable future projects to analyze traffic impacts. While the trial court agreed, the appellate court reversed noting that Guidelines section 15130(a) permits agencies to analyze cumulative impacts also based on a summary of projections contained in a prior environmental document that has been certified and which discussed regional conditions contributing to cumulative traffic impacts. In this case, the City’s cumulative traffic impact analysis was based upon a database and computer modeling system used to develop the regional Congestion Management Program (CMP), which had been adopted by the San Bernardino County Associated Governments. The appellate court found the summary of projections used in the CMP to be a proper basis for the project’s cumulative traffic impact analysis.

Contrary to the claims of Rialto Citizens, the City did not improperly limit the geographic scope of its cumulative air quality analysis to a five-mile radius. Rialto Citizens claimed the limited scope of the area was improper because it excluded a large contributor to air pollution – the BNSF railway yard. While the EIR outlined a list of 72 projects in relation to the project site, the EIR analysis clearly did not contemplate that list of 72 other projects, but instead was based on the project’s own emissions. Specifically, the local air district’s recommendation was to analyze whether the additional impact associated with the project should be considered significant in light of existing air quality issues. The EIR properly determined that the project’s additional impact on air quality should be considered cumulatively significant in light of existing air quality problems.

Mitigation Measures For Biological Impacts Were Sufficient

The EIR analyzed impacts to biological resources, including, potentially occurring plant species of “special status”, as well as three special status wildlife species. For the plant species, the EIR required that a qualified botanist conduct surveys for each special status plant species and provide the results to the City. If more than 20 individuals of any one of the species were found, the botanist would be required to prepare a plant salvage and transportation plan with specific requirements and timelines. The EIR also required that a 2080 Incidental Take Permit be obtained if surveys revealed any state-listed threatened or endangered species, as well as consultation with USFWS if any federally-listed species were identified through a survey. For the federally-endangered animal species, the EIR required a qualified mammalogist to conduct a habitat assessment prior to the issuance of a grading permit, and if found, to consult with the USFWS to determine appropriate offsite mitigation, monitoring and funding. Mitigation for the burrowing owl included a qualified biologist surveying the property prior to grading pursuant to USFWS and CDFG-approved survey protocol. If an owl was observed during the surveys, the applicant would be required to consult with the City to determine appropriate mitigation.

The trial court found that the proposed mitigation measures were improperly deferred. The appellate court, however, reversed, holding that the mitigation measures were sufficient. Specifically, requiring consultation with the USFWS was sufficient mitigation because it would necessarily result in mitigation measures imposed by USFWS if a permit was required. Additionally, requiring a plan containing performance standards for maintaining or salvaging plant species was sufficient to reduce impacts on those plant species to a less than significant impact even though the plan did not require agency approval. Similarly, the appellate court determined that the burrowing owl mitigation plan requiring surveys conducted pursuant to USFWS and CDFG protocol, as well as consultation if owls are found, was sufficient to reduce impacts on any owls present to less than significant levels. The fact that the specific mitigation was not outlined in the mitigation measure did not render the mitigation improperly deferred because it committed the applicant and agency to reduce impacts on the owl prior to grading.

The City Properly Rejected The Reduced Density Alternative As Infeasible

In analyzing alternatives to the project, the City considered a “reduced density alternative”, which would have excluded the four commercial outlots, but retained the Walmart supercenter. The City rejected the reduced density alternative as infeasible on the grounds that it would not fulfill all of the project’s objectives, and it was not environmentally superior in comparison to the project’s significant impact.  The trial court held that there was a lack of substantial evidence to support the City’s finding of infeasibilty because the rejected alternative was the environmentally superior alternative. In reversing the trial court’s decision, the appellate court held that “the [reduced density alternative] was properly rejected as infeasible even if it was environmentally superior to the revised, approved project, which was smaller than the RDA.” (Rialto Citizens, supra, (2012) 208 Cal.App.4th at p. 949, emphasis in original.)

Special Note

The case was ordered to be published (in whole) by the court of appeal on August 27, 2012. Rialto Citizens timely filed a petition for review on October 5, 2012. Multiple requests for depublication were filed with the Supreme Court on October 18, 2012. On November 27, 2012, the Court extended the time it has to grant or deny the petition for review to January 3, 2013. The Supreme Court can, on its own motion or in response to the depublication requests, order that the appellate court’s opinion not be published. The Court often rules on a request for depublication at the same time it rules on the petition for review. Unless and until the Court either grants review or orders the case unpublished, it remains good law. Stay tuned for an update.

Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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