Save Capitol, Save Trees v. Dep't of Gen. Serv.

321 Cal.Rptr.3d 46

SAVE THE CAPITOL, SAVE THE TREES, Plaintiff and Appellant,

v.DEPARTMENT OF GENERAL SERVICES, Defendant and Respondent;

Joint Committee on Rules of the California State Senate and Assembly, Real Party in Interest and Respondent.

C100160

Court of Appeal, Third District.

Filed April 18, 2024

APPEAL from a judgment of the Superior Court of Sacramento County, Steven M. Gevercer, Judge. Reversed and Remanded. (Super. Ct. No. 34-2021-80003717-CU-WM-GDS)

Brandt-Hawley Law Group and Susan Brandt-Hawley, Glen Ellen, for Plaintiff and Appellant.

Rob Bonta, Attorney General, Tracy L. Winsor, Senior Assistant Attorney General, Russell B. Hildreth, Sierra S. Arballo, Sophie A. Wenzlau, Gwynne B. Hunter, Deborah A. Wordham, and James C. Crowder, Deputy Attorneys General, for Defendants and Respondents and Real Party in Interest and Respondent.

MAURO, Acting P. J.

Plaintiff Save the Capitol, Save the Trees (Save the Capitol) appeals from an order discharging a peremptory writ of mandate that was issued by the trial court following direction from this court in Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 711, 303 Cal.Rptr.3d 761 (Save Our Capitol). In Save Our Capitol, this court reversed in part and affirmed in paid the trial court’s denial of two petitions for writ of mandate, one sought by Save the Capitol (the appellant in this appeal) and the other sought by an organization named Save Our Capitol!, which is not a party to this appeal. This court concluded that an environmental impact report (EIR) analyzing the impacts of a proposed project that will significantly alter the California State Capitol complex (the project), prepared by defendant Department of General Services and real party in interest Joint Committee on Rules of the California State Senate and Assembly (collectively DGS), failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).¹ On remand, the trial court issued a peremptory writ of mandate directing DGS to, among other things, vacate in part its certification of the EIR and all associated project approvals consistent with this court’s opinion in Save Our Capitol and file a final return to the writ "upon certification of a revised EIR." After DGS partially vacated its certification of the EIR and all associated project approvals, it revised, recirculated, and certified the revised final EIR. DGS then partially reapproved the project without one of the project components, the visitor center. DGS thereafter filed its final return and the trial court discharged the writ, over plaintiff’s objection, without determining whether the revised final EIR remedied the CEQA violations this court had identified in its opinion.

In this appeal Save the Capitol contends discharge of the writ was premature because (1) the writ not only required DGS to revise and recirculate the defective portions of the EIR, but also to certify a revised EIR consistent with Save Our Capitol before the writ could be discharged; and (2) DGS has not yet reapproved the visitor center component of the project.

We conclude that as to the approved project components, the trial court must determine that the revised EIR is consistent with Save Our Capitol before discharging the writ. We will reverse and remand for further proceedings.

BACKGROUND

The nature of the contentions raised in this appeal do not require a detailed description of the project. A more complete description can be found in Save Our Capitol, supra, 87 Cal.App.5th 655, 303 Cal. Rptr.3d 761. For our purposes, it is sufficient to note that at the time of this court’s prior opinion, the project consisted of three primary components: (1) demolishing the existing Annex attached to the east side of the Historic Capitol and constructing a new attached Annex; (2) constructing a new underground visitor center on the west side of the Historic Capitol; and (3) constructing a new underground parking garage. (Id. at p. 667, 303 Cal.Rptr.3d 761.)

In September 2019, a draft EIR was circulated for public review and comment. The following January, portions of the draft EIR were revised and recirculated due to design changes to the visitor center component of the project. (Save Our Capitol, supra, 87 Cal.App.5th at p. 668, 303 Cal.Rptr.3d 761.) Additional changes to the project, including to the Annex’s exterior and the location of the parking garage, did not result in revision or recirculation of the draft EIR. (Id. at pp. 668-669, 303 Cal.Rptr.3d 761.) Instead, DGS evaluated those modifications in the final EIR and determined that the project modifications would not result in any new significant impacts or substantially more significant impacts than those addressed in the draft EIR and the recirculated draft EIR, and they would not require any new or different mitigation measures. DGS also concluded that none of the modifications constituted significant new information requiring recirculation of the EIR. It certified the EIR on July 30, 2021, and approved the project as modified. At the same time, it issued findings of fact and a statement of overriding considerations. (Id. at p. 669, 303 Cal.Rptr.3d 761.)

The organizations Save Our Capitol! and Save the Capitol filed petitions for writ of mandate asserting various CEQA violations. The trial court denied the petitions and entered judgment in July 2022.

In December 2022, this court issued an opinion in consolidated appeals (modified on rehearing on January 18, 2023), partially reversing the judgment and concluding: "The EIR’s project description, analyses of historical resources and aesthetics, and analysis of alternatives do not comply with CEQA." (Save Our Capitol, supra, 87 Cal. App.5th at p. 666, 303 Cal.Rptr.3d 761.) With respect to the project description, this court concluded the description of the Annex’s exterior design changed significantly in the final EIR. (Id. at p. 676, 303 Cal.Rptr.3d 761.) Whereas the draft and recirculated draft EIRs did not describe the new Annex’s exterior design and broadly stated that the aesthetics and materials would be "consistent" with the Historic Capitol and would create a "one-building feel," the final EIR indicated the new Annex would have a glass exterior "compatible" rather than consistent with the Historic Capitol, and the one-building feel would instead be created within the new Annex’s interior spaces. (Ibid.) Because this change occurred in the final EIR, the public was not provided a meaningful opportunity to comment on the glass exterior’s impact on the Capitol. (Ibid.)

This court also concluded the EIR’s analysis of historical resources was deficient to the extent it did not permit public comment on the new Annex’s exterior design disclosed in the final EIR. (Save Our Capitol, supra, 87 Cal.App.5th at p. 683, 303 Cal.Rptr.3d 761.) With respect to the EIR’s analysis of aesthetics, this court concluded that CEQA required the EIR to include an explanation of how light emitted from the then-existing Annex would compare to light emitted from the new Annex’s glass exterior. (Save Our Capitol, at p. 696, 303 Cal.Rptr.3d 761.) A majority of the panel also concluded that CEQA required the EIR to include a representation or rendering that would allow the public and decision-makers to understand and consider the view of the Historic Capitol’s west side from Capitol Mall once the visitor center was completed. (Id. at p. 695, 303 Cal.Rptr.3d 761.)

Finally, with respect to the EIR’s analysis of alternatives, this court concluded "the alternatives chosen did not contribute to a reasonable range of alternatives that fostered informed public participation and decision-making." (Save Our Capitol, supra, 87 Cal.App.5th at p. 703, 303 Cal. Rptr.3d 761.) The EIR considered three alternatives that would have moved the visitor center away from the Capitol’s west side, and found that none of the alternatives met project objectives and avoided significant effects. (Id. at pp. 703-704, 303 Cal.Rptr.3d 761.) This court concluded CEQA requires consideration of an alternative that would feasibly attain most of the project’s objectives while also lessening the project’s significant impacts on the west lawn, such as moving the visitor center to the Capitol’s south side. (Id. at pp. 703-705, 303 Cal.Rptr.3d 761.)

This court reversed the judgment "to the extent it found DGS had complied with CEQA and its findings were supported by substantial evidence with regard to the EIR’s project description, its analysis of the project’s impacts on historical resources and aesthetics, and its analysis of alternatives." (Save Our Capitol, supra, 87 Cal.App.5th at p. 711, 303 Cal.Rptr.3d 761.) This court affirmed the judgment in all other respects and remanded the matter "with directions to issue a peremptory writ of mandate directing DGS to vacate partially its certification of the EIR and to revise and recirculate the deficient portions of the EIR consistent with this opinion before it considers recertifying the EIR." (Ibid.)

On remand in June 2023, and as relevant to the instant appeal, the trial court vacated its prior judgment, entered a new judgment in favor of Save the Capitol, granted the petition for writ of mandate in part, and issued a peremptory writ of mandate directing DGS to: (1) vacate in part its certification of the EIR and all associated approvals for the project "consistent with the Opinion of the Court of Appeal" and file a preliminary return to the writ within 30 days describing its compliance with this mandate; (2) suspend project activities that will physically alter the Capitol, Capitol Park, or the Capitol Complex during remand, aside from demolition of the existing Annex and refrain from further discretionary project approvals that rely on decertified portions of the EIR until the writ is discharged; and (3) file a final return to the writ "upon certification of a revised EIR." The writ further stated: "The pa...