Sicking v. City of Upland

1

LOIS SICKING, Plaintiff and Appellant, v. CITY OF UPLAND, Defendant and Respondent.

E082066

California Court of Appeals, Fourth District, Second Division

December 5, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County, No CIVSB2118832 Donald R. Alvarez, Judge. Affirmed.

Briggs Law Corporation, Cory J. Briggs, and Janna M. Ferraro for Plaintiff and Appellant.

Best Best & Krieger and Amy E. Hoyt for Defendant and Respondent.

OPINION

MENETREZ J.

The City of Upland (the City) applied for a grant from the California Department of Parks and Recreation (the Department) to renovate and revitalize a local park. The application process required the City to comply with the California Environmental Quality Act (Pub. Resources Code § 21000 et seq., CEQA). (Unlabeled statutory references are to the Public Resources Code.) The City accordingly assessed the possible significant environmental impacts of the proposed renovations and upgrades and issued a mitigated negative declaration, signifying its determination that even though the renovations could have a significant environmental effect there would be none because the project was modified by measures to mitigate those environmental effects.

Lois Sicking, a resident of the City, filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) in the superior court, challenging the proposed renovations on the ground that CEQA required the City to prepare an environmental impact report. The trial court denied the petition and upheld the City's adoption of the mitigated negative declaration.

On appeal, Sicking contends that (1) the project's description in the mitigated negative declaration violates CEQA because it is not accurate, finite, or stable, and (2) the City was required to prepare an environmental impact report because there is substantial evidence of a fair argument that the proposed project may have a significant environmental impact on the park's trees and various bird species that inhabit and nest in those trees. We reject the contentions and affirm.

CEQA OVERVIEW

"CEQA is a comprehensive scheme designed to provide long-term protection to the environment" and is "to be interpreted 'to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" (Mountain Lion Foundation v. Fish &Game Com. (1997) 16 Cal.4th 105, 112.) The Legislature enacted CEQA "to (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment." (California Building Industry Assn. v. Bay Area Quality Management Dist. (2015) 62 Cal.4th 369, 382 (CBIA).)

To achieve those goals, CEQA and its implementing regulations require public agencies to comply with a three-step process when planning an activity that might come within CEQA's scope. (CBIA, supra, 62 Cal.4th at p. 382; Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 286 (Tomlinson); Cal. Code Regs., tit. 14, § 15000 et seq. (hereinafter CEQA Guidelines^[1]).) At "the first step, the public agency must determine whether the proposed development is a 'project,' that is, 'an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment' undertaken, supported, or approved by a public agency." (Tomlinson, at p. 286; § 21065; CEQA Guidelines, § 15378(a).) If the proposed activity is a project, then the second step applies. (Tomlinson, at p. 286.) Under the second step, the public agency must "decide whether it is exempt from compliance with CEQA under either a statutory exemption (§ 21080) or a categorical exemption set forth in the regulations (§ 21084, subd. (a); Cal. Code Regs., tit. 14, § 15300)." (Ibid.) "If the project is not exempt, the agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will not have such an effect, it must 'adopt a negative declaration to that effect.'" (Ibid.) If the agency determines that the project has potentially significant effects on the environment but also determines that (1) those effects can be mitigated "to a point where clearly no significant effect on the environment would occur" and (2) "there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment," then the agency may adopt a "'mitigated negative declaration'" instead of preparing an environmental impact report. (§ 21064.5; CEQA Guidelines, § 15070(b).) If the agency determines that the project may have a significant impact on the environment regardless of mitigation measures, then the agency must proceed to the third step, "which entails preparation of an environmental impact report before approval of the project." (Tomlinson, at p. 286; Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1, 13 (Upland Community).)

BACKGROUND

I. Proposition 68

In June 2018, California voters approved Proposition 68, the California Drought, Water, Parks, Climate, Coastal Protection, and Outside Access for All Act of 2018 (the Act), which implemented Senate Bill No. 5 (2017-2018 Reg. Sess.). (Stats. 2017, ch. 852; 2018 Cal. Legis. Serv. Prop. 68 (Proposition 68).) The Act added section 80050 to the Public Resources Code, which made $700 million available to the Department "upon appropriation by the Legislature, for the creation and expansion of safe neighborhood parks in park-poor neighborhoods in accordance with" other legislation. (§§ 80002, subd. (d), 80050, subd. (a).) The funds were made available through a competitive grants program in which applications were accepted in multiple rounds.

II. The City's grant application

In 2019, the City submitted an application to the Department for $8.5 million to fund the renovation and revitalization of Upland Memorial Park (the park). The Inland Oversight Committee filed a lawsuit challenging the City's use of a categorical exemption under CEQA for the proposed improvements to the park. The City and the Inland Oversight Committee settled the lawsuit. The City agreed to "prepare an initial study under CEQA for a possible Master Plan of improvements for Memorial Park," but the City did not agree to "pre-commit to any level of CEQA review beyond the initial study."

In 2021, the Upland city council (the city council) approved a resolution for the City to re-apply for $8.5 million to fund the renovation and revitalization of the park. As part of that resolution, the City recognized that successful grant applicants would "enter into a contract with the State of California to complete the Grant Scope project." In March 2021, the City resubmitted its application to the Department for the revitalization project for the park. Within 90 days of the filing of the application, the City had to comply with CEQA to determine whether any significant environmental impacts would result from the project. In conjunction with the application, the city manager certified that the City would comply with CEQA and that the project would be "described in adequate and sufficient detail to allow the project's construction or acquisition." The city manager further certified that the CEQA analysis would "encompass[] all aspects of the work to be completed with grant funds."

In a June 2021 report from the city manager to the city council, the city manager recommended that the city council adopt a resolution approving the Upland Memorial Park Revitalization Master Plan (the master plan) and the Mitigated Negative Declaration and associated Mitigated Monitoring Program.

III. The initial study and the mitigated negative declaration

In June 2021, after providing notice, receiving comments, and holding a public hearing, the city council approved the master plan and adopted the mitigated negative declaration. The city council concluded that the proposed renovations and upgrades to the park as mitigated by specified measures would not have a significant impact on the environment.

Section 2 of the mitigated negative declaration is entitled "Project Description" and consists of four pages plus attached exhibits, including a site plan and a site legend. Section 2 describes the park as a 40-acre developed public park with various onsite structures and amenities, including a YMCA building, a community center, and the City's animal shelter. The park contains three lighted ballfields, one lighted basketball court, a skate park, a bandshell, playground equipment, picnic areas, and designated areas to park. The park contains a rose garden and is landscaped with ground cover and various types of tree species, including oak trees.

In a subsection of section 2 entitled "Proposed Upgrades and Improvements," the mitigated negative declaration explains that the City "is proposing to mainly upgrade and rehabilitate existing facilities throughout the park, although some new facilities will be added to meet current community recreational needs." (Underlining omitted.) The location of each of the proposed improvements and upgrades is shown on an attached site plan with an accompanying legend identifying the location of each proposed improvement and upgrade. The proposed renovations and improvements are also "generally described" in a list of 22 items.

Thirteen of the 22 items are classified as "new." One project involves construction of a...