Jacumba v. San Diego Cnty. Bd. of Supervisors

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SAVE JACUMBA et al., Plaintiffs and Appellants, v. SAN DIEGO COUNTY BOARD OF SUPERVISORS, Defendant and Respondent;

JVR ENERGY PARK, LLC, Real Party in Interest and Respondent.

D081148

California Court of Appeals, Fourth District, First Division

January 23, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. 37-2021-00040109-CU-TT-CTL, Ronald F. Frazier Judge. Affirmed.

Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L Clarke and Jamey M.B. Volker for Plaintiffs and Appellants.

Claudia G. Silva, County Counsel, and Joshua M. Heinlein for Defendant and Respondent.

HUFFMAN, Acting P. J. Brownstein Hyatt Farber Schreck, Ryan R. Waterman, Christopher R. Guillen, Matthew L. Hofer and Mackenzie W. Carlson for Real Party in Interest and Respondent.

INTRODUCTION

This appeal involves the County of San Diego's approval of a solar project (Project) next to the community of Jacumba and the certification of an Environmental Impact Report (EIR) for the Project under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).^[1]Save Jacumba, We Are Human Kind, LLC, and Jeffrey Osborne (together, Appellants) filed a petition for writ of mandate against the San Diego County Board Of Supervisors (County or Board) and the developer, JVR Energy Park, LLC (JVR) (together, Respondents). The superior court entered a judgment denying the petition.

On appeal, Appellants argue the County's land use determinations were inconsistent with, or in violation of its planning documents; the EIR did not provide a stable project description or adequately consider a reduced project alternative; and the EIR did not adequately analyze and/or mitigate various environmental impacts. We conclude their contentions lack merit, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jacumba, Parties, and Project Site

Jacumba is an unincorporated community near the Mexico border. It was a tourist attraction in the early 20th century, including due to its natural hot springs and hotel, and its population exceeded 5,000 by the 1930's. It later faced competition from Palm Springs and Murietta, and went into economic decline after I-8 bypassed the community. By 2010, the population was around 560.

Save Jacumba is a citizens' association. We Are Human Kind, LLC (Human Kind) owns the Jacumba Hot Springs Resort. Osborne is a resident of Jacumba, and a partner and manager of Human Kind. A company called Dudek prepared the EIR for developer JVR, and BayWa r.e. Solar Projects LLC (BayWa) supplied additional technical memoranda.^[2]

The approved Project would cover 604 acres on a 1,356 acre site. Jacumba is located southwest of the Project site, and Jacumba Community Park borders it. Old Highway 80 crosses Jacumba, and bisects the site. The Sunrise Powerlink, Southwest Powerlink 500 kV, and San Diego Gas &Electric (SDG&E) 138kV transmission lines also cross the site. As for the rest of the site's surrounding area, I-8 is to the north. The Jacumba Solar Facility and East County Substation are located around two miles east, and Jacumba Airport is to the southeast. The international border fence is to the south. Anza-Borrego Desert State Park sits to the west.

B. JVR Application, EIR, and County Approval

In November 2017, JVR applied for a solar project on the site, which included the "photovoltaic units" ("PV" modules or solar panels), a "battery energy storage system, a substation, a switchyard, overhead transmission lines, and supporting electrical components." The "Switchyard Facilities" would cover 8.1 acres, and consist of the switchyard, which "controls the output of energy to the grid," and an "overhead connection to the existing SDG&E transmission infrastructure." The planned operational life of the Project was 35 years, after which all components besides the Switchyard Facilities would be decommissioned.

In March 2019, the County issued a Notice of Preparation, which initially indicated the Project "would require a General Plan Amendment, a Rezone, and a Major Use Permit."

A Draft Environmental Impact Report (DEIR) was circulated from October to December 2020. The DEIR stated the General Plan Amendment and Rezone applications had been withdrawn, and (as we elaborate below) a Major Use Permit (MUP) could be granted subject to a bonded agreement sufficient to ensure component removal. Project alternatives included a Community Buffer Alternative and Reduced Project Alternative, which had smaller footprints, and mitigation measures included an on-site, 435-acre biological open space easement (biological easement). The County received over 150 comments.

The Final EIR (FEIR or EIR unless specified), dated June 2021, reflects the Project was revised to increase setbacks from Jacumba Community Park and Old Highway 80, and would now use bifacial solar panels, with higher wattage, to maintain the same energy capacity.

The Planning Commission hearing was in July 2021. County staff recommended the Community Buffer Alternative. Two Planning Commissioners commented that residential development was unlikely, because of "vehicle miles traveled ...." By a five to two vote, the Planning Commission recommended the Board approve the Project, including adoption of the Community Buffer Alternative.

The Board hearing was in August 2021, and many members of the public spoke and raised concerns. The Board unanimously approved the Project. It approved a MUP, certified the EIR, adopted the Community Buffer Alternative, and expanded the setback, while directing JVR to "provide $4,000,000 toward community benefits" in Jacumba. It also adopted a Statement of Overriding Considerations for impacts to certain visual and mineral resources, and found they were outweighed by the Project's "considerable benefits."

C. Appellants' Petition for Writ of Mandate

In September 2021, Appellants filed a petition for writ of mandate against the Board and JVR. They cited multiple jurisdictional grounds, including Code of Civil Procedure sections 1085 (traditional mandamus) and 1094.5 (administrative mandamus). Their first cause of action alleged the EIR certification and Project approvals were contrary to CEQA. Their second cause of action alleged the Project approvals were contrary to the General Plan and Zoning Ordinance, citing Code of Civil Procedure section 1094.5.

In May 2022, Respondents both moved for judgment on Appellants' petition. Appellants responded with a motion for peremptory writ of mandate. Respondents filed a joint reply brief. The trial court heard the matter in June 2022. In August 2022, it granted Respondents' motions and entered a judgment denying Appellants' petition with prejudice. Appellants timely appealed.

DISCUSSION

I. Respondents' Arguments for Forfeiture

Respondents argue Appellants forfeit issues based on appellate briefing standards (which we find persuasive), and for not exhausting administrative remedies or properly pleading their land use claim (which we do not).

A. Appellate Briefing Standards

Briefs must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." (Rule 8.204(a)(1)(B); see South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 339, fn. 10 (SOMA) [a "record citation, standing alone, does not suffice to raise a legal or factual issue"].) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)

An appellant also must "fairly set forth all the significant facts, not just those beneficial to the appellant." (In re S.C. (2006) 138 Cal.App.4th 396, 402; rule 8.204(a)(2)(C) [brief must "[p]rovide a summary of the significant facts"].) We "may decide that the appellant has forfeited a point . . . when it is not supported by accurate citations to the record." (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.) Further, an appellant who challenges the sufficiency of the evidence "must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (Defend the Bay).)

Points raised for the first time on reply also may be deemed forfeited. (Raceway Ford Cases (2016) 2 Cal.5th 161, 178 (Raceway) ["We generally do not consider arguments raised for the first time in a reply brief"]; In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693 (Groundwater Cases) ["Basic notions of fairness dictate that we decline to entertain arguments that a party has chosen to withhold until the filing of its reply brief, because this deprives the respondent of the opportunity to address them on appeal."].)

Here, Appellants' opening brief contains one-sided descriptions of the record; many points lack reasoned argument, authority, or explanation of the evidence; and they raise new arguments on reply. Respondents filed an opposed motion to strike or disregard certain of those newly raised reply arguments. We grant Respondents' motion to strike in part, insofar as we agree Appellants improperly raised new points and will disregard them in our discussion as warranted. We will also apply other forfeiture principles as applicable.

B. Exhaustion of Administrative Remedies

Next Respondents argue Appellants did not exhaust administrative remedies on several issues. They do not address the trial court's rejection of their exhaustion arguments below, or why no cross-appeal was needed...