by William W. Abbott

A new court decision affirms the adequacy of an EIR prepare in response to an application by Pluto Development, Inc, the development arm of Wal-Mart. Pluto submitted an application to the Town of Apple Valley (long time home of Roy Rogers, Dale Evans and Trigger, Roy’s trusty horse, for those of you under the age of 50). After preparation of an EIR, the Town Council approved the project, based upon a statement of overriding considerations. The project approval was subsequently challenged in court by a desert environmental group and the California Attorney General. The appellate court decision wrestled with several common EIR problems, and resolved all of them in favor of the lead agency.

At the outset, as a procedural matter, the City and developer asserted that the opponents failed to exhaust their administrative remedies, by failure to raise issues now complained of in court, during the administrative proceedings. While CEQA is pretty liberal as to who can bring a lawsuit, the appellate court restated the rule that the issues in court must first be raised in the administrative proceeding. On this basis, many of the legal challenges brought forward by the opponents were summarily blocked from further debate. That being said, the court also reaffirmed the rule that members of the public are not expected to be conversant in specific legal procedures, and that as long as an issue was raised with some specificity, that would be sufficient.

As with many EIRs, the opponents challenged the traffic analysis. Specifically, the claim was the EIR was deficient because it relied upon data supplied by the applicant, based upon a similar project in an undisclosed location, but not upon the ITE trip generation manual. The argument was that there was no means by which the source data could be confirmed since it originated from an undisclosed location. The appellate court rejected the implicit argument that the lead agency had to use the ITE manual, recognizing that the trip numbers are based upon limited undisclosed traffic studies, and that it was reasonable to use traffic numbers based upon a similar user.

Related to traffic, the court accepted the City’s use of LOS D and F as the threshold of significance for CEQA purposes. As a result, the degradation of service at numerous intersections was not a significant impact as the LOS trigger was not pulled.

In perhaps one of the more interesting conclusions, the court implicitly read into a mitigation for monitoring an intersection for a traffic warrant, that the City would install the signal when the warrant requirement was met. fn1

The opponents also objected based upon land use conflicts. However, these were discussed in great detail in the EIR. fn2

Opponents also challenged the noise analysis. The EIR examined both project and operational noise levels. To mitigate construction noise, the Town required compliance with as to hours and days of construction, bringing the project into compliance with the noise ordinance. The court affirmed this approach. As to operational impacts, although only a few homes would be impacted, the EIR concluded that the impacts were significant and unmitigable. fn3

Even the Mohave Ground Squirrel couldn’t save the opponents. CDFG wrote that the developer could either survey and trap, or assume the squirrel was present, in which case it would have to follow CDFG requirements. This requirement was imposed upon the project, which the court held to be sufficient. fn4

The appellate court decision addresses one rarely litigated issue, and that was whether or not the end user (Wal-Mart) had to be identified in the EIR. The California Attorney General attempted to convince the court that this information was necessary so that the EIR would be a full disclosure document for the public. The court declined to take the bait, concluding that the land use permits ran with the land and were not personal to any particular user. Further, any debate about the end user was an economic consideration, outside the purview of CEQA analysis. There was no evidence of unique impacts associated with Wal-Mart as a user of the distribution center. The court specifically rejected the notion that there was a different set of mitigation rules for well-heeled applicants compared to the less well off.

What do we learn from this decision?

Opponents must exhaust their administrative remedies.

The ITE manual is not the written gospel in every situation.

Conventional approaches to noise mitigation strategies are acceptable.

Adherence to Fish and Game protocols is acceptable mitigation.

The project end user is largely irrelevant for purposes of CEQA considerations.

Maintain Our Desert Environment v. Town of Apple Valley (2004) 120 Cal.App.4th 396.

fn1 A lead agency should never rely upon such a creative interpretation to forge or resurrect a mitigation requirement. It poses significant due process issues if the applicant objects when suddenly hit with a new implied or undisclosed measure.

fn2 In the opinion of this author, this practice is significantly abused by many CEQA consultants wherein each policy is used as a basis to evaluate environmental impacts. Here however, was a practical benefit from this analysis.

fn3 Thus affirming the practice that when in doubt, conclude that the impacts would be significant and unmitigated.

fn4 This means that the actual survey work could take place after project approval. Interestingly, the opponents did not challenge this practice as a form of deferred analysis and/or mitigation.

William W. Abbott is a partner with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.