Cmty. Envtl. Advocates v. City of Grass Valley

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COMMUNITY ENVIRONMENTAL ADVOCATES et al., Plaintiffs and Appellants, v. CITY OF GRASS VALLEY, Defendant and Respondent;

RUSSEL JETER, as Trustee, etc., Respondent; R. JETER FAMILY TRUST, Real Party in Interest.

C094613

California Court of Appeals, Third District, Nevada

January 30, 2023

NOT TO BE PUBLISHED

Super Ct. No. CU20-084791

KRAUSE, J.

In this action under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), plaintiffs Community Environmental Advocates et al (plaintiffs) challenge the City of Grass Valley's (City) actions certifying an environmental impact report (the EIR) and approving the Dorsey Marketplace development project (project) proposed by Russel Jeter, as trustee of real party in interest, the R. Jeter Family Trust (Jeter Trust).^[1] The proposed project is a mixed-use development consisting of approximately 104,000 square feet of commercial uses, 8,500 square feet of office space, and 172 multifamily residential units, located on the site of a former mine in Grass Valley, California.

Plaintiffs contend the EIR prepared in connection with the project did not comply with CEQA because it (1) did not accurately describe the project or its environmental setting; and (2) did not identify, analyze, or discuss adequately the project's impacts related to traffic, air quality, noise water supply, wastewater, hazardous materials, urban decay protected plant species, and wildfires. Plaintiffs also contend (3) the findings made in support of the EIR's statement of overriding considerations are not supported by substantial evidence; and (4) the required mitigation monitoring and reporting program lacks sufficient enforcement mechanisms to ensure that the adopted mitigation measures will be implemented.

We agree with plaintiffs that the EIR's air quality analysis is deficient because it does not evaluate adequately State Route (SR) 20/49 as a contributor of mobile source pollution and the associated health risks for future project occupants. We reject plaintiffs' remaining arguments. Accordingly, we shall reverse the judgment in part, with instructions to grant the petition for writ of mandate with respect to the EIR's analysis of air quality impacts, and affirm the trial court's order and judgment denying the writ petition in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A. History of the project site

The proposed project is located on 26.8 acres of undeveloped land within the City of Grass Valley. The project site is bordered by SR 20/49 to the west, industrial and commercial uses to the south, and the Grass Valley Terrace Apartments to the east. To the north, separated by Dorsey Drive, are the Springhill Garden Apartments.

The project site is the former location of the Spring Hill Mine, which operated during the late 1800's and intermittently through the 1940's. Abandoned mine features located on the site include excavations, pits, stockpiles of waste rock, and dry tailings ponds. Due to the history of mining, the property has been classified as a "brownfield site," meaning that re-use of the property "may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." (42 U.S.C. § 9601(39)(A).) Investigations of the site have revealed the presence of arsenic, lead, mercury, and other potentially hazardous metals.

B. Approval of the "Removal Action Work Plan"

From 2003 to 2007, Holdrege & Kull, an engineering and geology consulting firm, performed investigations of the site for prospective purchasers, including, in 2007, a preliminary geotechnical engineering investigation and report.

In 2008, the Jeter Trust purchased the property. The Jeter Trust entered into a "voluntary cleanup agreement" with the California Department of Toxic Substances Control (DTSC) to investigate and remediate hazardous substances at the site.

On behalf of the Jeter Trust, Holdrege & Kull prepared a preliminary endangerment assessment (PEA) report for the DTSC's review and approval. The PEA was based on the understanding that a commercial development was proposed for the site. At the time, neither an EIR nor a tentative map for the project had been submitted to the City.

A human health risk assessment was performed as part of the PEA. The PEA recommended that the mine waste in the former mill area be excavated and removed, and that the mine waste outside the former mill area be consolidated and buried beneath the proposed commercial development. The DTSC approved the PEA in February 2008.

Based on the findings in the PEA, Holdrege & Kull prepared and submitted to the DTSC a draft removal action work plan (RAW). (Health & Saf. Code, § 25323.1.) The purpose of the RAW was to describe procedures for remediating the hazardous environmental conditions at the site. The RAW describes the onsite contamination, the proposed remedial criteria, the plan for achieving remediation, as well as procedures to confirm that the remedial criteria are achieved. The DTSC provided comments on the draft, and a final RAW was submitted to the DTSC in June 2012.

The final RAW identified two areas of concern (AOC's) for remediation. The former mill area was identified as AOC 1, and the remaining mine waste area (generally located to the west of the mill) was identified as AOC 2. The RAW identified two separate strategies for remediation of AOC 1 and AOC 2 based on the results of the human health risk assessment and an evaluation of local background soil concentrations. As recommended in the PEA, the mine waste within AOC 1 would be excavated and removed from the site, and the waste in AOC 2 would be consolidated and buried beneath the proposed development. An estimated 1,700 cubic yards (150 truckloads) of mine waste rock, tailings, and affected soil would be removed from the former mill area and transported to a waste disposal facility. From the remaining waste area, an estimated 64,000 cubic yards of contaminated mine waste and affected soil would be excavated, consolidated, buried on site, covered with 10 feet of clean soil, and then capped with either the foundations of a building or a parking lot. Prior to implementation of the RAW, the DTSC must review and approve the final site development plans showing the onsite placement details.

The RAW requires verification soil sampling after excavation and placement of the mine waste to confirm that the remedial goals are achieved. The RAW also requires a deed restriction to ensure that the mine waste within the onsite placement area is not disturbed in the future.

The DTSC determined that the RAW was "categorically exempt" from CEQA under section 15330 of chapter 3 of division 6 of title 14 of the California Code of Regulations, pertaining to minor cleanup actions. (The regulations found in title 14 of the California Code of Regulations, section 15000 et seq., are hereinafter referred to in this opinion as the "CEQA Guidelines.") The final RAW and a proposed CEQA notice of exemption underwent a 30-day public comment period from August 8, 2013, to September 9, 2013. On November 12, 2013, the DTSC approved the RAW and directed that the notice of exemption and approval of the RAW be published in the local newspaper.

C. The proposed development project

In 2014, the Jeter Trust applied to the City's "Development Review Committee" for conceptual review of a preliminary site plan for a proposed shopping center on the property. The initial proposal was for a 215,250-square-foot commercial retail development.

In late 2015, the Jeter Trust submitted a formal application for the project. The proposed project, as revised, was a mixed-use development consisting of approximately 179,000 square feet of commercial uses with 90 multifamily residential units. Subsequently, the Jeter Trust developed an alternative site plan, further reducing the proposed commercial space to approximately 104,000 square feet, while increasing the multifamily residential to 172 units, and adding 8,500 square feet of office space. The alternative site plan came to be known as "Alternative B," while the original site plan came to be known as "Alternative A."

To comply with CEQA, in March 2019, the City prepared and released for public comment a draft EIR for the project. According to the draft EIR, the objectives for the proposed project included: redeveloping the property to allow for the environmental clean-up of the former mining site; creating a high-quality mixed-use infill project through the re-use of an existing brownfield site; creating new quality high-density market-rate housing to help satisfy the City's regional housing needs; and creating new retail uses that will capture more local sales tax dollars and reduce the amount of "sales tax leakage," while reducing vehicle miles traveled, air quality impacts, and greenhouse gas (GHG) emissions.

The draft EIR evaluated the environmental impacts of the two project alternatives, Alternative A and Alternative B, at an equal level of detail. It identified potentially significant environmental impacts on land use, aesthetics, biological resources, cultural resources, transportation, noise, air quality, climate change, geology, and hazardous materials. The City received 17 letters commenting on the draft environmental analysis.

In or about November 2019, the City released its final EIR. The final EIR contained revisions to the draft EIR and written responses to comments received on the draft EIR. The final EIR concludes that all the project's potentially significant impacts will be reduced to a less-than-significant level through implementation of feasible mitigation measures, except for two significant and unavoidable impacts on transportation (for Alternative A only) and...