Protect Our Homes & Hills v. Cnty. of Orange

PROTECT OUR HOMES AND HILLS, et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE, et al., Defendants and Respondents;YORBA LINDA ESTATES, LLC, Real Party in Interest and Respondent.

G055716

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

May 8, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2015-00797300)

OPINION

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Reversed with directions.

Kevin K. Johnson, Kevin K. Johnson and Jeanne L. MacKinnon for Plaintiffs and Appellants.

Leon J. Page, County Counsel, and Nicole M. Walsh, Deputy County Counsel for Defendants and Respondents.

Remy Moose Manley, James G. Moose and L. Elizabeth Sarine for Real Party in Interest and Respondent.

* * *

This ongoing legal battle between Protect Our Homes and Hills and others (collectively, Protect) on one side, and the County of Orange (County) and real party in interest, Yorba Linda Estates, LLC, on the other, concerns the County's compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) in relation to a residential development to be located in the hills adjacent to the City of Yorba Linda (Project). Protect appeals from the discharge of the first of two preemptory writs of mandate issued by the trial court, with the discharge being based on the court's determination that the County fully complied with the writ's directives.

In addition to asserting the trial court erred in finding it was precluded from raising certain issues in opposition to the County's discharge request, Protect contends the court incorrectly concluded the revised final environmental impact report for the Project (revised FEIR) remedied the greenhouse gas-related shortcomings previously identified by the court—the improper deferral of mitigation and the placement of an arbitrary limit on the required efficacy of future mitigation. Specifically, Protect argues that (1) although the County imposed concrete mitigation measures to remedy the deferral problem, it erroneously failed to consider and evaluate the impact reduction potential of additional mitigation measures that were brought to its attention prior to certification of the revised FEIR; and (2) there is no evidence in the administrative record to support the revised FEIR's conclusion that requiring each residence to be equipped with solar photovoltaic (PV) roof panels is infeasible.

Although we find one of Protect's arguments was not properly before the court due to waiver, and we find no merit in its contention that the County violatedCEQA by failing to analyze certain mitigation measures, we nevertheless conclude it was error for the trial court to discharge the writ of mandate. The writ required the County to remedy the court-identified deficiencies in the FEIR by, inter alia, revising it "in accordance with CEQA [and] the CEQA Guidelines[.]"¹ The County failed to do so because the revised FEIR's infeasibility conclusion concerning the use of solar panels to mitigate the Project's greenhouse gas impacts is not supported by any evidence.

FACTS²

The 340-single family home Project proposed by developer and real party in interest Yorba Linda Estates, LLC, is to be located on a previously undeveloped site situated in an unincorporated area of Orange County. An initial study performed by the County concerning the Project led it to conclude an environmental impact report (EIR) needed to be prepared. The County, as the lead agency, prepared a draft EIR (DEIR) and circulated it for public review and comment in accordance with CEQA and the CEQA Guidelines. Following the submittal of thousands of comments concerning the Project and the DEIR from members of the public, federal and state agencies, and other government entities, responses by the County to those comments, certain revisions to information in the DEIR, and noticed public meetings, the County board of supervisors certified a final environmental impact report (FEIR). It also adopted a statement of overriding considerations concerning the Project's significant unavoidable impacts, adopted a mitigation monitoring and reporting program, and granted the associated Project approvals.

Protect filed a petition for writ of mandate challenging certification of the FEIR and the land use approvals. The CEQA-related allegations in the petition concerned, inter alia, the Project description, the analyses of cumulative impacts, aesthetics, air quality, biological resources, geology and soils, wildland fire hazards, greenhouse gas emissions, recreation, traffic, noise, and water supply availability, and the purported deferral of mitigation of various significant impacts to a later time.

Although the trial court rejected most of the challenges, it found merit in Protect's arguments concerning the FEIR's greenhouse gas analysis and the related discussion of impact mitigation. Specifically, the court concluded (1) the greenhouse gas analysis was flawed because it arbitrarily limited consideration of mitigation measures rather than following CEQA's mandate of adopting all feasible mitigation measures to reduce impacts to a less than significant level; and (2) formulation of mitigation concerning greenhouse gas impacts was impermissibly deferred to a time too late in the development process.

The trial court entered judgment and issued a corresponding preemptory writ of mandate (first writ).³ The first writ specified steps for the County to take concerning the FEIR and the Project approvals, including: (1) vacate certification of the FEIR, as well as adoption of the mitigation and monitoring program and statement of overriding considerations; (2) vacate all Project approvals based on those documents; (3) revise the FEIR "in accordance with CEQA, the CEQA Guidelines, the [s]tatement of [d]ecision, the [j]udgment, and [the] [w]rit, to bring the EIR into compliance with CEQA by resolving the deficiencies identified by the [c]ourt in its [s]tatement of [d]ecision"; and(4) consider whether to recirculate and certify the revised FEIR and whether to issue any Project-related approvals.

Protect appealed challenging limited portions of the partial denial of its petition. It did not raise any greenhouse gas-related issues. This court affirmed the trial court's judgment, in part, and reversed, in part. (Protect Our Homes & Hills v. County of Orange, supra, G054185) We found the FEIR did not contain the requisite accurate and stable description of the Project's environmental setting, and it failed to properly analyze water supply availability and adequately mitigate fire hazard impacts. We remanded the matter to the trial court, ordering it to modify the judgment and issue another preemptory writ of mandate (second writ) directing the County to take steps similar to those specified in the first writ to correct the additional deficiencies we identified. (Ibid.)

While that appeal was pending, the County took actions which it believed were in compliance with the first writ. It assembled a list of mitigation measures it determined would be feasible, a consultant assessed the contribution those measures, individually and collectively, would make toward reducing the Project's greenhouse gas impacts, and a different consultant conducted a peer review of the assessment to identify any concerns and recommend revisions. Using the finalized technical assessment, the County revised the FEIR's greenhouse gas analysis and recommended imposition of 40 mitigation measures. Even with imposition of those measures, the County determined the Project's greenhouse gas impacts would remain significant.

The County planning commission and board of supervisors held multiple public meetings concerning the revised FEIR, and the County received many comments with respect thereto. At one of the meetings, the board of supervisors vacated the resolutions which certified the FEIR and granted the related Project approvals. Approximately six months later, it certified the revised FEIR, adopted a statement of overriding considerations, granted new Project approvals, and adopted a mitigation andmonitoring program which included the roughly 40 greenhouse gas mitigation measures set forth in the revised FEIR.

Thereafter, the County filed a motion in the trial court seeking an order discharging the first writ. Protect opposed the motion, contending the revised FEIR only partially corrected the greenhouse gas-related defects identified in the trial court's prior statement of decision. From its perspective, the County continued to arbitrarily limit the extent to which reasonable mitigation measures were considered, failed to analyze and adopt all reasonable mitigation measures, including a requirement that solar PV roof panels be installed on each residence, and provided no evidence to support its finding that certain mitigation measures were infeasible.

The trial court heard the matter, took it under submission, and subsequently issued a detailed minute order granting the County's discharge motion. It concluded the County complied with the writ "in all respects." In doing so, the court deemed the following two of Protect's assertions waived due to its failure to raise the arguments in its original challenge to the FEIR: (1) the County erroneously failed to consider and analyze certain greenhouse gas-related mitigation measures; and (2) the revised FEIR unwarrantedly accounted for mitigation of "statewide programs having no connection to the Project's impacts" in its qualitative greenhouse gas analysis of the Project's greenhouse gas impacts. The court also found the revised FEIR's infeasibility...