The Fourth District recently ordered publication of its decision in San Diego Citizenry Group v. County of San Diego (July 30, 2013, Case No. D059962) __Cal.App.4th__. The Fourth District upheld the trial court’s decision rejecting a challenge to the adequacy of the county’s EIR, which analyzed a zoning ordinance intended to encourage the development of boutique wineries. But the appellate court determined the trial court had erred in awarding the county the costs of preparing planning commission transcripts for the administrative record because these transcripts were not in existence at the time of the board of supervisors’ approval of the ordinance.
Facts and Procedural Background
This case arises from the County of San Diego’s efforts to promote the growth of grapes and the expansion of the wine industry. In 2006, the board of supervisors began exploring ways to allow boutique wineries to expand and operate by right within the county. The county received public comments revealing concerns about traffic and related traffic safety impacts, especially on privately owned rural roads. Nonetheless, in 2008, the board directed its staff to develop a “tiered winery ordinance” that would allow boutique wineries by-right.
In 2009, the county prepared and circulated for public review a Draft EIR analyzing the potential environmental impacts of adopting the winery ordinance. The DEIR concluded that the project would cause 22 significant and unmitigated environmental impacts as a result of approving an unlimited number of future wineries by-right. Despite these impacts, the board adopted a Final EIR and a statement of overriding considerations in 2010. San Diego Citizenry Group filed a petition for writ of mandate challenging certification of the EIR. The Group requested that the county prepare the administrative record.
The trial court denied the petition and ordered the petitioner to reimburse the county for the costs of preparing the record. San Diego Citizenry Group appealed.
The Appellate Court’s Decision
The project objectives were proper.
On appeal, the petitioner argued that the county did not properly make a “preliminary policy determination” regarding the objectives for the project, and in particular, that the EIR improperly relied on these objectives when analyzing the feasibility of mitigation measures. But the court quickly dispensed with this argument, noting that the county included within the EIR a “statement of the objectives sought by the proposed project” in compliance with CEQA Guidelines section 15124. In fact, the county defined nine objectives for adopting its proposed ordinance amendment.
Adequacy of discussion and mitigation of impacts to private roads
Next, the petitioner argued the EIR was inadequate because it did not discuss “any ‘additional’ mitigation measures in ‘meaningful detail.’” But the court noted that the petitioner failed to identify any potentially feasible mitigation measures that the EIR omitted. The county was not required to engage in an extensive discussion of infeasible mitigation measures, including mitigation measures that are incompatible with the project’s “core” objectives. Requiring the county to analyze the incorporation of mitigation measures or alternatives that would defeat a project’s primary objectives would run contrary to CEQA’s definition of “feasible.”
The petitioner also attacked the adequacy of the EIR’s discussion of impacts to private roads caused by the ordinance because the EIR rejected a mitigating traffic measure previously adopted in 2008. But the court determined that the county was not required to adopt the 2008 traffic measure simply because it was suggested and addressed impacts identified in the EIR. An agency may delete previously adopted mitigation during review of a project so long as it states a legitimate reason for doing so. The court determined the county had a legitimate reason for not adopting the 2008 measure because it was developed for a completely different project involving private landowner agreements, rather than by-right uses. Furthermore, the FEIR included mitigation measures, such as limitations on the size of vehicles allowed to enter boutique wineries and various restrictions on operations at the wineries, which specifically addressed these impacts to private roads.
The EIR adequately discussed potential environmental impacts
The petitioner argued that the EIR did not sufficiently analyze the project’s potential significant environmental impacts for a variety of reasons.
Focusing on potential future impacts to traffic, appellants first argued that the EIR analysis was insufficient because the county did not use its “best efforts” to predict how many by-right wineries could be developed under the ordinance. But the court noted that the EIR did not “simply state that the level of development is unknown and then label each impact as significant without meaningful analysis or discussion.” The county based a prediction of future boutique winery development on the pattern of development of existing grape growers and wineries. The county had surveyed 26 existing wineries, eleven of which responded, with eight indicating an intention to convert to boutique wineries under the proposed ordinance. The FEIR analyzed the amount of traffic each new boutique winery would generate and determined the maximum concentration of wineries that could be developed. Therefore, the court found the FEIR adequately analyzed the project’s traffic impacts based on existing and anticipated development.
Second, the petitioner argued that the EIR did not sufficiently identify project impacts to water supplies. But the court disagreed, noting that the FEIR met the standard under Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, that “a conceptual plan EIR, such as one for a general plan amendment to allow proposed development,” must identify “the likely source of water for new development, noting the uncertainties involved, and discussing measures being taken to address the situation in the foreseeable future.” The county also collected survey data from wineries located in San Diego and Riverside counties to better estimate impacts on water supplies. This was sufficient.
Third, the petitioner argued the FEIR’s discussion of grading permits was “materially misleading” because it suggested grading permits could mitigate for “every type of environmental impact associated with the winery.” Determining that the FEIR actually acknowledged the exact opposite, the court rejected this argument.
Fourth, the petitioner argued that the board of supervisors’ statement of overriding considerations was invalid because the FEIR was deficient and did not provide a basis for the findings. But the court determined the EIR actually relied on conservative assumptions and disclosed potential environmental impacts in an informative matter. Thus, the board was within its discretion to rely on the EIR when it adopted the statement of overriding considerations.
Fifth, the petitioner argued that the ordinance was inconsistent with the county’s general plan. Specifically, the petitioner argued the ordinance allowed by-right wineries in environmentally constrained areas for which the general plan requires environmental review of development projects. The court found, however, that an EIR is not required to be consistent with a general plan; instead, the EIR must identify and discuss any such inconsistencies. The EIR in this case sufficiently discussed the alleged inconstancy, and the petitioner could not show that the county’s decision to exclude wineries from the environmentally constrained area provisions of the general plan was “unreasonable.”
Reimbursement for transcript costs
Finally, the Court of Appeal concluded that the trial court had erred when it ordered the petitioner to reimburse the county for the cost of preparing certain transcripts for the record since the transcripts were not created until after the approval of the winery ordinance. Section 21167.6, subdivision (e)(4) requires the party preparing the record to include transcripts or minutes “that were presented to the decisionmaking body prior to action on environmental documents or on the project.” The trial court had ordered appellants to pay approximately $6,000 for the costs of creating transcripts of planning commission hearings, but appellants successfully argued that they should not have to pay these costs because it was undisputed that the planning commission transcripts were not before the board when it made its decision to approve the winery ordinance.