Second District Finds Construction Impact Challenges to Malibu’s “Legacy Park” Project Moot and Substantial Evidence Supported City’s Conclusions Regarding Water Quality and Groundwater Impacts

On April 5, 2011, the Second District Court of Appeal in Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, held that Santa Monica Baykeeper’s (Baykeepers) lawsuit challenging the City of Malibu’s adoption of an EIR and approval of a park and detention basin project was moot as to construction-related impacts because the project was completed during the pendency of the lawsuit, and no recognized exception to the mootness doctrine applied. The court also confirmed that substantial evidence supported the EIR’s conclusions regarding the use of treated effluent from an adjoining lumber yard project and the EIR’s conclusion that the project would reduce, rather than create, groundwater impacts. Accordingly, the court affirmed the trial court’s judgment denying Baykeeper’s petition for writ of mandate.


The 15-acre Legacy Park project site is located in the Malibu Civic Center at the terminus of the Malibu Creek watershed where the creek drains into Malibu Lagoon and periodically discharges to Surfrider Beach. Adjacent to the Legacy Park project site is a lumber yard commercial project. The city approved the lumber yard project in 2007, which included construction of an 85,600-square-foot dispersal field within the Legacy Park site to which treated wastewater effluent from the lumber yard would be discharged. There were no challenges to the lumber yard project. A key issue in the Baykeeper appeal was whether the use of the lumber yard’s treated effluent would have an impact on groundwater as a result of its use for irrigation of Legacy Park.

As originally conceived, the Legacy Park project had four primary components: (1) stormwater detention and treatment; (2) habitat restoration; (3) public park; and (4) wastewater treatment and reuse. The overall purpose of the project is to provide an integrated plan for the Civic Center area that would protect water quality at nearby beaches and the Malibu Lagoon from contaminants and provide opportunities for restoration of native and sensitive habitats, as well as public recreation.

Following the release of the Draft EIR for the project, the city eliminated the wastewater treatment element from the project because further investigations showed the site could not accommodate it. At the direction of the planning commission, this change to the project was discussed in a revised version of the Final EIR. Following the release of the revised Final EIR, the City of Malibu Planning Commission conditionally approved the project.

Baykeeper appealed to the city council. Baykeeper argued the city violated CEQA by eliminating the wastewater treatment element of the project after the close of public comment. Baykeeper also argued the EIR failed to adequately analyze construction-related impacts, the impact of using treated effluent from an adjacent lumber yard project and groundwater impacts. The council denied the appeal and certified the EIR. Baykeeper filed a petition for a writ of mandate challenging the EIR certification and Legacy Park project approval. After the Superior Court denied the Baykeeper’s petition, the organization appealed to the Court of Appeal.

The Court of Appeal’s Decision

The court of appeal first considered whether Baykeeper’s claims regarding construction-related impacts were moot. An appeal becomes moot when the occurrence of events makes it impossible for the court to grant effective relief. The city argued that because construction had been completed, the court would be unable to give effective relief to Baykeeper, making its appeal moot. The court agreed. In so holding, the court distinguished Woodward Park Homeowners Association v. Garreks, Inc. (2000) 77 Cal.App.4th 880, in which the reviewing court considered a CEQA challenge on the merits despite completion of the project at issue. In that case, the respondent city and developer had tried to bypass the CEQA process and proceed despite a court order. No such facts were present in Baykeeper’s situation. Instead, the Court of Appeal found the Legacy Park situation to be more analogous to the recent case of Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559 because, like the petitioner in that case, Baykeeper had failed to take steps to prevent the project’s construction during the litigation. Therefore, the court refused to hear Baykeeper’s construction-related impacts claims.

Regarding groundwater and water quality impacts, Baykeeper claimed the EIR failed to analyze the potential for the use of the lumber yard effluent to cause groundwater mounding. Baykeeper noted that although the draft EIR referenced a study to be conducted on the groundwater mounding issue, the study was never performed. The city countered that a groundwater mounding study was no longer necessary because the Legacy Park project had been modified so as not to create groundwater percolation, which, in turn, would prevent groundwater mounding. The court agreed with the city, concluding that the EIR’s omission of the mounding study did not constitute an abuse of discretion because substantial evidence supported the conclusion that the project would not result in groundwater mounding.

Baykeeper further argued that the EIR failed to adequately analyze potential contamination from the adjacent lumber yard’s effluent. The court rejected Baykeeper’s argument. The court noted that the use of the lumber yard’s treated wastewater had already been subject to a separate approval, which was not challenged in court and therefore could not be subject to a challenge of the Legacy Park EIR.

Lastly, Baykeeper argued that the city violated CEQA with respect to its analysis of cumulative groundwater impacts. According to Baykeeper, CEQA required the city to analyze the cumulative impacts of the lumber yard project in combination with the Legacy Park project, but the city failed to so. The city countered that the Legacy Park project, as modified in its final EIR, did not discharge anything into the groundwater, and therefore did not make any contribution to the cumulative groundwater impact. The city also asserted that like Baykeeper’s previous arguments, Baykeeper’s objections to cumulative groundwater impacts should have been made with respect to the lumber yard project, not the Legacy Park project. Moreover, the city argued, the Legacy Park project would reduce existing subsurface disposal by using treated effluent for irrigation. The court agreed with the city, concluding, among other things, that because the project would reduce the lumber yard’s groundwater impacts, rather than add to them, CEQA did not require a cumulative groundwater impact analysis of the lumber yard project combined with the Legacy Park project.