On July 8, 2011, the Third District Court of Appeal in Clover Valley Foundation v. City of Rocklin (2011) __Cal.App.4th__ upheld the ruling of the trial court on a challenge to an EIR for a residential development in favor of the City of Rocklin. This case addresses a number of CEQA claims brought by multiple plaintiffs. In important part, the court held the city was prohibited by state and federal law from revealing detailed information about cultural resources to the public to protect such resources from destruction, despite CEQA’s requirement to disclose information about cultural resources that would be impacted by a proposed project. The court also applied the Supreme Court’s ruling in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 to find the city had appropriately analyzed water supplies for the project in the EIR. The court rejected appellants’ remaining claims related to the sufficiency of the EIR in addressing growth-inducement and impacts to oak trees, the California black rail, aesthetics, and traffic, as well as consistency with the general plan.

Since 1981, the residential zoning for the property at issue has allowed for residential development of up to 974 homes. In 1991, the owners of the property applied to develop the maximum number homes with 69.8 acres of open space and to annex the property into the city. The city certified the EIR for the project in 1997. At some point thereafter, the property changed hands and the current owners, the real parties in interest, applied to subdivide the property. The EIR for the subdivision tiered from the 1997 annexation EIR. During the environmental review process, the project was whittled down to 558 homes, and the amount of open space increased to 366 acres. The real parties also agreed to pay for new infrastructure and to transfer cultural sites on the property to the United Auburn Indian Community for preservation. The changes in the project necessitated general plan and zoning amendments, which the city addressed by preparing a new draft EIR to analyze the revised project. On August 28, 2007, the city council certified the EIR and approved the project.

Plaintiffs, including the Clover Valley Foundation and the Sierra Club (collectively, the Foundation) as well as the Town of Loomis, sued. The Foundation and Loomis alleged a number of violations of CEQA and the Planning and Zoning Law. The trial court denied the writ petitions and the plaintiffs appealed.

The Court of Appeal upheld the trial court’s ruling on the Foundation’s numerous claims. First, the court held the EIR provided an adequate description of existing cultural resources on the project site. The EIR identified the cultural resources, but did not provide their location, size, or significance. More specific information, including their location, size, and significance, was provided, however, in a confidential management plan. To reduce cultural resource impacts to a less than significant level, the EIR proposed a number of mitigation measures requiring, among other things, cultural sensitivity training for construction personnel, data recovery excavations, and permanent fencing around sites prior to the issuance of a grading permit. In responding to comments on the EIR, the city provided a chart with additional information regarding the eight affected cultural sites and included descriptions of required mitigation measures.

In light of conflicting statutory requirements that, on the one hand, required the city to adequately describe the existing setting, yet on the other hand, required the city to protect the confidentiality of the location and type of cultural resources, the court found the city appropriately protected information concerning the project site’s cultural resources. CEQA requires an accurate and complete description of the project setting; however, it also requires agencies to protect information about the location of archaeological sites and sacred lands. The Public Records Act further exempts from public disclosure any records “of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects . . . maintained by, or in the possession of . . . a local agency.” The purpose of protecting such information is to preserve cultural resources from possible destruction. The court found the EIR provided adequate information to permit decision makers and members of the public to assess the existence of cultural resources on the project site, the project’s potential adverse impacts on those resources, and the effectiveness of mitigation measures to reduce the impacts to a less than significant level. The court further held that including additional information in the responses to comments did not trigger the need for recirculation because it was not “significant new information” within the meaning of CEQA Guidelines, section 15088.5; rather, the responses to comments merely clarified or amplified information in the EIR.

Second, the court held the EIR adequately analyzed growth-inducing impacts that would result from construction of an off-site sewer pipeline to serve the project and nearby development of additional residences. The EIR explained that the pipeline would remove an obstacle to future growth. The court found that CEQA required no further analysis because the purpose of the project was to accommodate future growth, not facilitate it, and the pipeline only removes one obstacle to development of more housing. Additionally, no further analysis of growth-inducing impacts was required because that future growth had already been analyzed in the city’s general plan and general plan EIR.

Third, the court rejected the Foundation’s claim that the EIR failed to disclose the loss of all oak trees that would be affected by the project. The EIR concluded that even with implementation of mitigation measures pursuant to a policy of the city’s general plan, the impacts to oak trees lost from construction of major project roadways would remain significant and unavoidable. The EIR also found impacts to the oak trees, other than those impacted by roadway construction, would be mitigated to a less than significant level with implementation of development agreement conditions and compliance with the city’s oak tree preservation ordinance. The court found this discussion was adequate under CEQA to disclose impacts to all oak trees.

Fourth, contrary to the Foundation’s assertion, the EIR’s mitigation measures for the California black rail, a threatened bird species that is fully protected under the California Endangered Species Act, were legally enforceable and did not impermissibly defer mitigation. In particular, the Foundation claimed the EIR deferred mitigation by requiring the developer to conduct bird surveys 30 days prior to ground-disturbing activities. If a listed species, such as the black rail, was identified, the mitigation measure required the developer to pursue appropriate permits and implement any measures required by the permits. As asserted by the Foundation, because a permit could not be issued to take a fully protected species, the mitigation measure was unenforceable. The court clarified, however, that deferral of mitigation is permissible where a permitting agency is expected to impose mitigation measures in connection with the permit so long as the EIR includes performance criteria and the lead agency commits itself to mitigation. Here, the court found the city met these requirements.

As to the Foundation’s final argument, the court held the city did not violate its general plan by permitting construction of a proposed roadway on land designated as open space that was within a 50-foot buffer of a creek. Applying a deferential standard of review to the city’s determination, the court found that allowing the road to encroach into the buffer area avoided the need for the city to clear a number of oak trees, which would defeat the purpose of having a buffer area.

Next, the court turned Loomis’s claims. On appeal, the court rejected Loomis’s first claim that the EIR failed to sufficiently analyze the project’s aesthetic impacts or discuss potential mitigation measures to reduce those impacts. The court found the EIR included substantial evidence to support its conclusions regarding the significance of impacts and the feasibility of mitigation measures. The EIR was not required to analyze every conceivable mitigation measure, including those suggested by Loomis.

The court next considered Loomis’s claim that the EIR’s traffic impact analysis impermissibly omitted two intersections and that it failed to analyze traffic conditions during the AM school time period. The court disagreed. The court noted the final EIR specifically addressed Loomis’s concerns regarding the two intersections by analyzing changes in daily traffic volumes at these intersections and concluding traffic volumes would be too small to perform a level of service intersection analysis for them. The city also adequately explained that it used a PM peak period time period to analyze impacts from school traffic because the PM hour is when the highest volumes are on the roadway system.

Finally, the court held the EIR’s water supply analysis met, and exceeded, the requirements set forth in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412. Water for the project would be provided by the Placer County Water Agency (PCWA), which had a “first-come, first-served” policy for new customers. PCWA’s policy ultimately meant that the project potentially could lose out on water supplies if there were any project construction delays. The court observed, however, that PCWA certified to the city in writing that it had enough water to meet the project’s needs and all other contemplated development for the next 20 years. Thus, PCWA’s verification went beyond a mere “likelihood of actually proving available”; it was virtually certain water would be available, which was more than CEQA required the EIR to show. Because of this certainty, the EIR was not required to discuss a possible replacement source, although such discussion was included in the EIR.