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CBD V Kern County

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CBD V Kern County Filed 4/25/12 Center for Biological Diversity v. Kern County CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT CENTER FOR BIOLOGICAL DIVERSITY et al., F061908 Plaintiffs and Appellants, (Super. Ct. No. S-1500-CV-268902) v. OPINION KERN COUNTY et al., Defendants and Respondents; TEJON MOUNTAIN VILLAGE, LLC et al., Real Parties in Interest. APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. John Buse, Adam Keats, Matthew Vespa, Jonathan Evans, Jason A. Weiner, Caroline Farrell, Brent Newell, and Alegría De La Cruz for Plaintiffs and Appellants. Theresa A. Goldner, County Counsel, Charles F. Collins, Deputy County Counsel for Defendants and Respondents. Holland & Knight, Charles L. Coleman III and Jennifer L. Hernandez for Real Parties in Interest. -ooOoo- This case presents a challenge under the California Environmental Quality Act (CEQA) to Kern County‟s approval of a development project known as Tejon Mountain Village. The project is a large housing and resort development beside Interstate 5 in the Tehachapi Mountains, just north of the Los Angeles County line. The developer is Tejon Mountain Village, LLC, an entity created by the owner of the land, Tejon Ranch Company. The challengers are four nonprofit organizations: Center for Biological Diversity, Wishtoyo Foundation, Tricounty Watchdogs, and Center on Race, Poverty & the Environment. The superior court denied the challengers‟ petition for a writ of mandate to reverse the county‟s approval. In this appeal, the challengers argue that the environmental impact report (EIR) prepared by the county prior to project approval is deficient in its treatment of five topics: (1) air pollution; (2) water supply; (3) Native American cultural resources; (4) the California condor; and (5) the exclusion of a lake from the project boundaries. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL HISTORIES Tejon Ranch Company (TRC) owns Tejon Ranch, a largely undeveloped 270,000- acre property in the southern San Joaquin Valley, the Tehachapi Mountains, and the Antelope Valley in Kern and Los Angeles Counties. Tejon Mountain Village (TMV) is one of a number of projects proposed by TRC and other developers which, if built, will bring urbanization to this mostly undeveloped area north and south of the border between Kern and Los Angeles counties near Interstate 5. TMV would include 3,450 homes (about 11,000 people at a rate of about 3.1 people per home). Centennial, another project proposed by TRC, is to be located in the northwest corner of the Antelope Valley a short distance east of Interstate 5, just south of the Los Angeles County line, and will include about 23,000 homes (about 71,000 people). San Emigdio, with about 20,000 homes (about 62,000 people), has been proposed by another developer for a location west of 2. Interstate 5 between Wheeler Ridge and Grapevine, about 10 to 15 miles north of TMV. Several hundred more homes and hundreds of thousands of square feet of commercial and industrial space have been proposed by other developers for the area within a six-mile radius around TMV. Close to Interstate 5, about 30 miles south of the project site, near Magic Mountain at the northwestern tip of the Los Angeles metropolitan area, the Newhall Ranch project, with about another 25,000 homes, has been proposed. The 3,450 housing units at TMV, which the developer describes as vacation homes, will include single-family houses on large and small lots, as well as apartments, condominiums, and townhouses. The development will also include multiple hotels with a total of 750 rooms and 160,000 square feet of restaurant, retail, and other commercial development. In addition, there will be 350,000 square feet of buildings related to the following uses: two 18-hole golf courses, two helipads, equestrian facilities, riding and hiking trails, private community centers, an electrical substation, and water treatment and wastewater treatment plants. The project will be built in six phases over 17 years. The project site is a 26,417-acre portion of Tejon Ranch immediately east of Interstate 5 in Kern County, adjacent to the Los Angeles County border. It is about 40 miles south of Bakersfield and 60 miles north of Los Angeles. All of the construction would take place in a 5,082-acre building area within a 7,867-acre “development envelope.” Eighty percent of the site, or 21,335 acres, will be preserved as ranchland or other open space. The TMV project is part of TRC‟s plan to develop parts of Tejon Ranch and preserve the rest. TRC entered into a private agreement on this subject, known as the Conservation and Land Use Agreement or Ranchwide Agreement, with several environmental conservation groups: the Sierra Club, the Natural Resources Defense Council, Audubon California, the Endangered Habitats League, and the Planning and Conservation League. Under this agreement, TRC will preserve 145,000 acres of the 270,000-acre ranch through dedications of conservation and other open-space easements. 3. The environmental conservation groups will have options to purchase easements on an additional 62,000 acres. TRC agreed to preserve as open space 33,000 more acres within project development sites. A total of 240,000 acres, about 89 percent of Tejon Ranch, would be preserved. In return, the environmental conservation groups agreed not to mount legal challenges to TMV, Centennial, and a third potential project. The challengers in the present case are not parties to the agreement. The project required numerous approvals by Kern County, including certification of an EIR, adoption of a specific plan and a community plan, an amendment to the county‟s general plan, zoning changes, and termination of Williamson Act contracts. The county issued a notice of preparation of the EIR on September 30, 2005. The draft EIR was issued on May 27, 2009. On August 27, 2009, the county issued responses to comments and revisions to the draft EIR, which, together with the draft EIR itself, became the final EIR. The board of supervisors held a public hearing on the matter on October 5, 2009. The board voted unanimously to grant the requested approvals. It issued a notice of determination, stating that the project had been approved, on October 13, 2009. The challengers filed a petition for a writ of mandate in the superior court on November 12, 2009. The Center for Biological Diversity is a national organization concerned with environmental issues, especially threats to wildlife. Wishtoyo Foundation is a Ventura County organization composed of Chumash Native Americans and devoted to their interests, including interests in environmental and cultural preservation. Tricounty Watchdogs is a local organization composed of residents of the mountain communities in Kern, Los Angeles, and Ventura Counties in the vicinity of the project site; it is concerned with development-related issues. The Center on Race, Poverty & the Environment has offices in San Francisco and Delano and is concerned with environmental hazards in low-income and minority communities. Their petition challenged the adequacy of the EIR and raised issues related to water supply and water 4. quality; climate change and greenhouse gas emissions; air quality; the California condor and other biological resources; Native American archaeological sites; traffic; and earthquake and wildfire hazards. In a written order, the superior court noted that the challengers did not brief several issues raised in the petition; those issues were deemed forfeited. The court rejected the remaining issues and denied the petition. DISCUSSION I. Standards of review If a CEQA petition challenges agency action that is quasi-adjudicatory in character, the trial court‟s role is only to determine whether the action is supported by substantial evidence in the record. (Pub. Resources Code, § 21168 et seq.)1 If the agency action was quasi-legislative in character, the trial court reviews the action for an abuse of discretion. The agency abuses its discretion if it does not proceed in the manner required by law or if the decision is not supported by substantial evidence. (§ 21168.5.) “Substantial evidence” is defined in the Guidelines for the Implementation of the California Environmental Quality Act (Cal. Code Regs., tit. 14, § 15000 et seq., hereafter Guidelines) as “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.” (Guidelines, § 15384(a).) The formulations in sections 21158 and 21168.5 embody essentially the same standard of review. Both require the trial court to determine whether the agency acted in a manner contrary to law and whether its determinations were supported by substantial evidence, and neither permits the court to make its own factual findings. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5; Burbank-Glendale- 1Subsequent statutory references are to the Public Resources Code unless indicated otherwise. 5. Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 589-590.) The Court of Appeal reviews the trial court‟s decision de novo, applying the same standards to the agency‟s action as the trial court applies. (Neighbors of Cavitt Ranch v. County of Placer (2003) 106 Cal.App.4th 1092, 1100.) II. Air quality A. Air quality in the San Joaquin Valley Air Basin The project is located almost entirely in the San Joaquin Valley Air Basin (SJVAB).
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